SHIVA MURTHY vs M PUTTASWAMY

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

TH
DATED THIS THE 13 DAY OF OCTOBER, 2026

BEFORE

THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

REGULAR SECOND APPEAL NO.1736 OF 2018 (PAR)

BETWEEN:

SHIVA MURTHY
S/O LATE MOLLEKALAIAH
AGED ABOUT 50 YEARS,
TH
R/AT 8 CROSS
GANDHINAGAR
MANDYA – 571 401.
…APPELLANT
(BY SRI. MAHESH A.S., ADVOCATE)

AND:

1. M. PUTTASWAMY
S/O LATE MOLLEKALAIAH
AGED ABOUT 54 YEARS,
TH
R/AT 5 CROSS,
GANDHINAGARA
MANDYA – 571 401.

2. DR K.M. SURESH
S/O LATE MOLLEKALAIAH
AGED ABOUT 44 YEARS,
TH
R/AT K.V.321, 5 CROSS,
KUVEMPU NAGAR
MANDYA – 571 401.
…RESPONDENTS
(BY SRI. SHIVA PRASAD M., ADVOCATE)

THIS RSA IS FILED U/S.100 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 02.04.2018 PASSED IN
R.A.NO.26/2015 ON THE FILE OF THE PRL. DISTRICT AND
SESSIONS JUDGE, MANDYA, DISPOSING OF THE APPEAL AND
MODIFYING THE JUDGMENT AND DECREE DATED 07.03.2015

Digitally
signed by
VANDANA S
Location:
High Court
of Karnataka

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PASSED IN O.S.NO.5/2008 ON THE FILE OF THE PRL.SENIOR CIVIL
JUDGE & CJM, MANDYA.

THIS APPEAL, COMING ON FOR ADMISSION , THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

ORAL JUDGMENT

Appellant was defendant in O.S.No.5/2008 filed by
respondent Nos.1 – 2 / plaintiffs, which was decreed by the Trial
Court in favour of the respondents – plaintiffs against the appellant
– defendant and confirmed by the First Appellate Court in
R.A.No.26/2015, which dismissed the appeal filed by the appellant
– defendant.

2. Heard learned counsel for the appellant and learned
counsel for the respondents and perused the material on record.

3. A perusal of the material on record will indicate that it
is an undisputed fact and a matter of record that respondent Nos.1
and 2 – plaintiffs are none other than the brothers of the appellant.
The plaintiffs instituted the aforesaid suit against the appellant –
defendant herein for partition and separate possession of their
rd
alleged 1/3 share in the suit schedule immovable property and for

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other reliefs. It was specifically contended that while plaintiff No.1
was working as High School Teacher along with his wife, plaintiff
No.2 was a Veterinary Doctor and the appellant – defendant was
Veterinary Health Inspector, all three of them being employed and
having separate / independent source of income. It was contended
by the plaintiffs that vide registered Sale Deed dated 22.02.1999
executed by one Shambu and his family members, the plaintiffs
and defendant jointly purchased the suit schedule property, which
was a vacant site / plot at that point of time from the vendor, in
pursuance of which, the plaintiffs and the defendant became joint
owners / co-owners in lawful and peaceful possession and
enjoyment of the suit schedule property by virtue of Section 45 of
the Transfer of Property Act. It was contended that subsequently,
the plaintiffs and the defendant borrowed loan from Punjab
National Bank for the purpose of putting up construction on the suit
schedule property and subsequently, the plaintiffs and defendant
together / jointly discharged loan and since the appellant –
defendant did not comply with the request / demand made by the
respondents – plaintiffs to effect partition / division of the suit
schedule property and put plaintiffs in separate possession of their

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alleged legitimate share in the suit schedule property, the plaintiffs
instituted the aforesaid suit for partition and separate possession of
their legitimate share in the suit schedule property and for other
reliefs.

4. It was further contended that the appellant – defendant
entered appearance and filed his written statement interalia
admitting the relationship between the parties. It was further
contended that the suit schedule property was purchased /
acquired only by plaintiff No.1 and defendant and that the plaintiff
No.2 did not contribute any money towards the said acquisition of
the suit schedule property. It was further contended that it was
defendant and plaintiff No.1, who obtained loan from Punjab
National Bank and re-paid the entire loan together with interest
after completion of the construction and plaintiff No.2 did not make
any contribution towards either purchase of site / suit schedule
property or for putting up construction of a house on the suit
schedule property. It was also submitted that the plaintiffs did not
pay any amount / make any contribution towards repayment of the
loan and as such, they are not entitled to any share in the suit

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schedule property and the suit was liable to be dismissed. Based
on the pleadings of the parties, the Trial Court framed the following
issues:
“(1) Does the plaintiffs prove that they are the owners of
rd
the suit schedule properties and having their 1/3 share in
the same?
(2) Does the plaintiffs prove that they are entitled for
settlement of accounts and entitled for mesne profits as
sated in the plaint?
(3) Does the plaintiffs prove that plaintiff No.2 has not
contributed any amount for purchase of the suit schedule
property and for its construction?
(4) Does the defendant proves that he has discharged
the borrowed loans in connection with the plaint schedule
property as stated in their written statement?
(5) What order or decree?”

5. Plaintiff Nos.1 and 2 examined themselves as PW1
and PW3 and three witnesses as PW2, PW4 and PW5 and
documentary evidence at Ex.P1 to Ex.P23 were marked on their
behalf. Defendant No.1 examined himself as DW1 and four
witnesses as DW2 to DW5 and documentary evidence at Ex.D1 to
D24 were marked on his behalf. After hearing the parties, the Trial
Court answered issue numbers in the affirmative in favour of the

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plaintiffs by holding that both plaintiff Nos.1 and 2 are entitled to
rd
1/3 share each in the suit schedule property along with the
defendant. The Trial Court answered issue No.3 against the
defendant by holding that he had not established that plaintiff No.2
had not contributed any amount for purchase of the suit schedule
property and for its construction. However, the Trial Court
answered issue No.4 partly in the affirmative and came to the
conclusion that defendant had spent a sum of Rs.3,06,666/-
towards construction and for repayment of the loan and
consequently, directed the plaintiff to pay the aforesaid sum of
Rs.3,06,666/- (Rs.1,53,333/- + Rs.1,53,333/-) by plaintiff Nos.1 and
2 each to the defendant as directed in the judgment by holding as
under:
“10. ISSUES NO.1, 3 & 4:- As these three issues are
interconnected with each other, therefore they have been
taken together for common consideration & discussion in
order to avoid repetition of facts and also for the sake of
convenience.
The plaintiff No.1 in order to establish his case he
himself got examined as Pw-1 and filed his affidavit by way
of examination-in-chief, wherein he reiterated all the
averments made in the plaint and further on oath stated
before the court that he himself, plaintiff No.2 and the

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defendant are members of joint family. He further stated that
at the time of purchasing the site and constructing the house,
he himself and his wife were working as High School
Teacher at Saathanur and both of them were getting salary
of Rs.9,000/- each per month. He further stated that the
plaintiff No.2 is a Veterinary doctor and getting salary of
Rs.11,000/- per month. The defendant was also working as
Veterinary Health Inspector at Kirgavalu and getting salary of
Rs.5,500/- per month. He further sated that out of their joint
income, they have purchased a site for Rs.1,55,000/- and
thereafter wards they have decided to put up a residential
house in the said site. Accordingly, with an intention of
constructing the house, they all borrowed loan of
Rs.4,00,000/- from Punjab National Bank, Mandya jointly on
28.2.2000. Thereafter wards they altogether jointly
discharged loan. He further stated that remaining amount for
the construction of the building was borrowed by him from
his friends and relatives as a hand loan and also he had
taken personal loan from Syndicate Bank, Mandya and co-
operative societies. So he has stated that by availing loan
they have constructed residential house in the suit property.
He further stated that after construction of the house in the
ground floor along with a shop building all of them started to
live in the said house, but after few months, there started
dispute among them and in order to avoid inconvenience
again he borrowed loan from his friends and started to
construct a house in the first floor and after constructing two
houses in the first floor, the defendant being powerful
person, with bad faith did not allowed them to occupy any of

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the three houses constructed by them jointly and quarrel was
started among them. So the plaintiff No.2 had lodged police
complaint and in the presence of PSI, they have decided to
settle the matter outside the police station. So the matter
was closed there. He further stated that thereafter wards the
defendant has neither come for settlement nor permitted
them to live in any of the 3 houses and he himself is enjoying
the entire property income and he is in possession of the
entire property. He further stated that he himself and plaintiff
No.2 were residing in a rented house, even though they have
invested equal amount in the construction of the house. So
he stated that they all have got equal share in the suit
schedule property. Though they requested the defendant to
give their share, he has refused, so they have filed the
present suit seeking for their respective shares. In support of
his case, he got marked as many as 6 documents. Ex.P.1 is
the certified copy of sale deed executed by Shambu S/O
Bandigowda, Ex.P.2 is the assessment register extract
issued by CMC, Mandya, Ex.P.3 is the tax paid receipt,
Ex.P.4 is the tax self declaration list, Ex.P.5 is the certified
copy of assessment register extract pertaining to the suit
property, Ex.P.6 is the letter issued by the Manager, Punjab
National Bank. So in view of his above evidence &
documents, he prays for to decree the suit.

11. The plaintiff No.2 also himself got examined as
Pw-3 in order to establish their case. Upon going through his
evidence, it shows that he has spoken about the facts of the
case as stated by pw-1. Admittedly both plaintiffs are

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brothers and he has stated that with joint efforts, they
themselves and defendant purchased suit site and thereafter
wards constructed house in the suit property by availing loan
from Punjab National Bank. The plaintiff No.2 who has been
examined as Pw-3 in support of his case got marked as
many as 15 documents from Ex.P.7 to Ex.P.21. Ex.P.7 to
Ex.P.16 are the counter foils of challan to show that they
have paid installments towards the loan obtained from
Punjab National Bank, Ex.P.17 is the agreement executed
by the defendant in their favour. Ex.P.18 is the certificate
issued by the Degree College, Keragodu to show that
wherein he was working as part time Lecturer. Ex.P.19 is the
certificate issued by the Regional Poultry Farm training
authority Malavalli to show that he obtained training in
Poultry Farm, Ex.P.20 is the Baraward extract relating to the
defendants, Ex.P.21 is the job chart certificate relating to the
defendants. So in view of his above evidence and
documents, he prays for to decree the suit.

12. The plaintiffs in order to establish their case, they
got examined three witnesses as Pw-2, 4 & 5, out of which
pw-2 & 4 are none other than the own brothers of this
plaintiffs & defendant. Upon going through their evidence, it
shows that they totally supported the case of plaintiffs. Pw-5
is an independent witness and who claims to be the tenant in
the first floor of the suit schedule property. Upon going
through his evidence, it shows that for about 4 months, he
was residing in the first floor of the suit property as a tenant
and he obtained the said house from plaintiff No.1 herein. He

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further stated that at that time, he was working as cashier in
Syndicate Bank, Mandya. So also he has stated that the wife
of plaintiff No.1 by name Kanthashree is also working as
high school teacher and she was having account in their
Bank. He further stated that at that time, he has given loan of
Rs.70,000/- to her and also he has paid Rs.70,000/- to the
plaintiff No.1, as he availed said loan for the purpose of
bringing the marbles from Rajasthan for the purpose of
construction of their house. He further stated that during his
stay in the first floor of the suit property as a tenant, he used
to pay rent of the house to plaintiff No.1. He further stated
that even the loan given to the wife of plaintiff No.1 was
utilized by the plaintiffs for the purpose of construction of
their house. He further stated with regard to the repayment
of the loan by plaintiff No.1 and also his wife. He further
stated that after constructing a house he left the rented
house. So upon perusal of his evidence, it shows that he has
spoken about the loan availed by plaintiff No.1 and his wife
for the purpose of construction of the house in the site
purchased by them and the defendants.

13. The defendant in order to establish his case, he
himself got examined as Dw-1 and filed his detailed affidavit
by way of examination-in-chief wherein he reiterated all the
averments made in the written statement and further on oath
stated before the court that the suit property was purchased
by himself and plaintiff jointly and the same is standing in
their names jointly. He further stated that at the time of
execution of the sale deed, the defendant No.2 was not

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working and he has not contributed any amount for the
purpose of purchasing the site. He further stated that he
himself and plaintiff No.1 have contributed their share out of
their personal funds and got executed the sale deed jointly in
favour of himself and the plaintiffs. He further stated that
thereafter wards in order to construct a house, they have
borrowed loan of Rs.4,00,000/- jointly from the Punjab
National Bank, Mandya and in addition to the said amount,
he himself and plaintiff No.1 contributed another
Rs.3,00,000/- towards the completion of the construction of
house. He further stated that the plaintiff No.1 has not paid
any amount towards the loan borrowed by them in the Bank
and entire loan amount along with interest has been paid by
him and he has discharged entire loan amount and obtained
clearance certificate from the Bank. He further stated that he
had also borrowed hand loans from his friends in order to
clear off the loan from the Bank. He further stated that after
the construction of the house, they started to live together,
but due to indifferences in the family members they started
to live separately, but the plaintiff No.1 has given the first
floor house on rental basis and he himself was collecting the
rent. Inspite of that the plaintiffs have not made any efforts to
repay the loan amount obtained by them for the purpose of
construction of the house. He further stated that Punjab
National Bank authorities sent number of notices to them for
repayment of the loan and even he has brought the said fact
to the notice of plaintiff, but they did not bothered for the
same, ultimately the concerned Bank authorities issued
notice for auctioning the suit property, so in order to retain

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the property constructed by them, he obtained loan from his
friends and repaid the loan amount obtained by them for the
purpose of construction.

14. He further stated that at the time of purchasing the
site, the first plaintiff paid Rs.85,000/- and for the purpose of
construction he has paid another Rs.3,00,000/- on different
occasions, but the plaintiff No.2 has not paid any amount
either for the purpose of purchasing the site or for the
purpose of constructing the house and also he has not paid
any amount for the purpose of repayment of loan amount.
He further stated that at the time of purchasing the site, the
plaintiff No.2 was studying and he was under their care &
protection, so only for the name sake, his name has been
shown in the sale deed, as because he is none other than
their brother. He further stated that the entire amount
invested by them is the amount earned by themselves, but
not the amount obtained from the earnings of the joint family
property. He further stated that wife of first plaintiff has not at
all given any amount either for the purpose of purchasing the
site or for the purpose of constructing the house and the said
fact has been pleaded by the plaintiff just in order to knock
off the property which was retained by raising loan from his
friends for the purpose of repayment of the loan amount. He
further stated that since he himself has made arrangements
for the repayment of the loan amount, as such he is entitled
to retain the entire suit property by returning the amount
given by the plaintiff No.1. In support of his case, he got
marked as many as 24 documents. Ex.D.1 is the legal notice

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given to the plaintiffs, Ex.D.2 & Ex.D.3 are the postal
acknowledgements, Ex.D.4 is the personal letter sent by the
defendant to the Manager, Punjab National Bank, Ex.D.5 is
the office copy of the notice dtd.21.8.2006, Ex.D.6 is the
reply notice dtd.24.8.2006, Ex.D.7 is the copy of another
legal notice dtd.25.8.2006, Ex.D.8 & Ex.D.9 are the unserved
postal covers, Ex.D.10 is the another notice dtd.5.10.2006,
Ex.D.1 is the reply notice dtd.16.10.2006, Ex.D.12 is the
postal acknowledgement, Ex.D.13 to Ex.D.18 are the 6 Bank
challans, Ex.D.19 is a copy of letter dtd.1.9.2006, Ex.D.20 is
the reply sent by the Bank authorities, Ex.D.21 is the another
letter written by the Bank authorities, Ex.D.22 are 6 bills
given by Venkateshwara Hardwares to show that he has
purchased materials for the purpose of construction of the
house, Ex.D.23 is also receipt showing for having purchased
the materials for the construction of the house, Ex.D.24 is
the certificate issued by Chief Warden, Veterinary College
Hostel relating to plaintiff No.2. So in view of his above
evidence and documents, he prays for to dismiss the suit.

15. The defendant in order to establish his case, he
got examined 4 witnesses as Dw-2 to 5. Upon going through
the evidence of Dw-2, it shows that in his evidence, he has
stated that the defendant was supplying milk to his house,
subsequently he got job. Under such circumstances, he
came in close contact with the defendant. He further spoken
about the factum of loan of Rs.1,00,000/- given by him to the
defendant. So also he stated that the defendant obtained the
said loan for the purpose of clear off the Bank loan obtained

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by himself and his brothers plaintiffs and also auction notice
issued got by the Punjab National Bank to him. So also on
going through the evidence of Dw-3 & 4, it shows that they
themselves and defendant are schoolmates. They further
stated that they were told by defendant that he has received
auction notice from Punjab National Bank, so in order to
save the house constructed by him by investing huge
amount, he asked them loan of Rs.1,00,000/- each. So by
considering the said reason, both of them have paid
Rs.1,00,000/- each to him. They further stated that for having
received the said amount, the defendant has passed the
documents. So also upon going through the evidence of Dw-
5, in his evidence he has spoken about the factum of milk
supplied by the defendant earlier to he obtaining the job, so
because of the said reason he came in contact with the
defendant. He further stated that he was told by the
defendant that he received auction notice from Punjab
National Bank, so he is in need of some money to clear off
the loan obtained by himself and his brothers, in order to
save the house constructed by them by investing huge
amount, so by considering the said reasons, he has given
loan of Rs.2,00,000/- to the defendant and he himself
executed document for having received the said loan
amount. All the above said witnesses i.e., Dw-2 to 5 have
stated with regard to the factum of return of loan amount
obtained by the defendant to them.

16. The learned counsel for the plaintiff during the
course of his arguments contended that the plaintiffs and

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defendant are brothers & they have purchased site on
22.2.1999 for total sale consideration amount of
Rs.1,55,000/- and got registered the site jointly in their
names and they have purchased the said site from one
Shambu S/O Bandigowda and his sons and wife. He further
contended that the suit schedule property consists of ground
floor, two houses in the first floor and one shop building. He
further contended that at the time of purchasing the site, the
plaintiff No.1 and his wife were working as high school
teacher and they were getting salary of Rs.9,000/- each per
month. He further contended that the plaintiff No.2 is working
as Veterinary doctor and getting salary of Rs.11,000/- per
month and also the defendant is working as Veterinary
Health Inspector at Kirugavalu and getting salary of
Rs.5,500/-. So he contended that the suit schedule property
was jointly purchased by the plaintiffs and defendant with a
view to reside after retirement in Mandya city.

17. He further contended that the plaintiffs and
defendant have borrowed loan of Rs.4,00,000/- from Punjab
National Bank, Mandya jointly on 28.2.2000. Later on both
plaintiffs and defendant jointly discharged the loan. The
remaining amount for the construction of the building was
borrowed from their friends and relatives and as per personal
loan from Syndicate Bank, Mandya and from co-operative
societies. So he contended that from the above said loan,
the plaintiffs and defendant have constructed house in suit
schedule property. So the suit schedule property is the joint
property of both plaintiffs & defendant. He further contended

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that initially there was house in the ground floor along with
shop building and all of them started to live together in the
said house, but after some months there started dispute
among the family members, so in order to avoid
inconvenience again borrowed personal loan from the Bank
and hand loan from their friends and they have constructed
two houses in the first floor to live separately. He further
contended that after completion of building, the defendant
being powerful person did not allowed the plaintiff to occupy
in any of the three houses constructed by them jointly. So
the dispute started between them in that connection. So the
2nd plaintiff lodged complaint before West Police Station,
Mandya on 25.5.2006, but subsequently before PSI, they
agreed to settle the matter outside the police station.
Therefore, the matter closed.

18. He further contended that thereafter wards the
defendant did not allowed the plaintiff to reside in any of the
three houses constructed by them jointly, so they are forced
to live in the rented house. He further contended that the
very document produced by the plaintiffs at Ex.P.1 to Ex.P.5
clearly shows that the suit schedule site was purchased by
them jointly and they have jointly constructed by obtaining
loan. He further contended that though the plaintiffs
demanded the defendant to give their share in the suit
schedule property, but he has flatly refused to give their
share, so the plaintiffs have filed present suit. He further
contended that though the defendant contended that the
plaintiff No.2 has not contributed anything either for the

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purchase of the site or for the purpose of construction of the
house in the suit schedule property, but the very evidence
given by pw-3 i.e., plaintiff No.2 clearly shows that prior to he
obtaining a government job he was working as an part time
lecturer and getting salary of Rs.2,000/- and the entire
amount was being given by him in the hands of first plaintiff
for the purpose of purchasing the site. He further contended
that though the defendant contended that the plaintiffs have
not cared to clear off the loan obtained from the Punjab
National Bank, but the very documents produced by the
plaintiffs at Ex.P.7 to Ex.P.16 i.e., counter leaf of Challan
shows that they have paid some amount towards loan
amount and so also the very document produced by plaintiffs
at Ex.P.22 i.e., account extract relating to the plaintiff No.1
shows that some amount was deducted towards loan
amount. So what he contended that very material placed
before the court particularly Ex.P.1 certified copy of sale
deed shows that suit schedule property jointly obtained by
the plaintiffs and defendant and all have contributed for the
purpose of purchasing site. So also all the three jointly
obtained loan from the Punjab National Bank for the purpose
of construction of the house and the documents produced at
Ex.P.7 to Ex.P.16 and Ex.P.22 shows that the plaintiffs have
paid certain amount towards loan obtained by them for the
purpose of construction of the house. He further contended
that since the plaintiff No.1 and his wife both were working
as teachers and were getting good salary, so major portion
of income was contributed by the plaintiff No.1 and
defendant being Veterinary Health Inspector getting salary of

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Rs.5,500/- per month and it would be sufficient for him to
maintain his own family, so he has not contributed much
amount for the purpose of purchasing site and also for the
purpose of construction of the house in the suit schedule
property.

19. He further contended that the very evidence given
by Pw-2 & 4 who are none other than the brothers of
plaintiffs and defendant shows about the factum of purchase
of site jointly and the factum of construction of house by
obtaining loan from Punjab National Bank jointly. The
learned counsel for the plaintiff in order to prove the factum
of major portion of the amount invested by the plaintiff No.1
and his wife, he placed his reliance upon the evidence of
Pw-5 who claims to be the tenant in the first floor of the suit
property. By placing his reliance upon the evidence of the
said witness, he contended that he has given loan of
Rs.70,000/- to the wife of plaintiff No.1 and also in his
personal capacity, he paid loan of Rs.70,000/- to the plaintiff
No.1. He further contended that the very evidence given by
pw-5 shows that the said amount was utilized by plaintiff
No.1 for the purpose of purchasing marbles from Rajasthan
to utilize the same for the construction of their house.

20. The learned counsel for the plaintiff further
contended though the defendant claims that he himself has
cleared off the loan obtained from the Punjab National Bank,
but the very document produced by the plaintiff at Ex.P.6 i.e.,
letter issued by the Punjab National Bank authorities shows

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that all the three together have cleared off the loan obtained
by them for the purpose of construction of the house. Inspite
of that the defendant contending that he alone cleared off the
loan obtained by them from Punjab National Bank. So in
view of his above arguments, he urged to answer issue No.1
in the affirmative and issue No.3 & 4 in the negative.

21. On the contrary, the learned counsel for the
defendant during the course of his arguments contended that
the suit schedule property was purchased jointly in the name
of plaintiffs and defendant, but at the time of execution of the
sale deed, the defendant No.2 was unemployed and he has
not contributed any amount for the purpose of purchasing
the site. He further contended that the plaintiff No.1 and
defendant have contributed their share out of their personal
funds and got executed sale deed jointly in favour of the
plaintiffs and defendant.

22. He further to prove the factum of plaintiff No.2 has
not contributed anything, he placed his reliance upon
Ex.D.24 i.e., certificate issued by Chief Warden, Veterinary
college hostel, KVA-FSU, Hebbal, Bangalore. By placing his
reliance upon the said documents, what he contended that
the said documents clearly shows that the plaintiff No.2 was
student in Animal Genetic and Breeding during the year
1996-97 to 1997-98 and he was resident of Hostel since
16.1.1997 to 20.4.1999. The said document itself clearly
shows that he was not an earning member at the time of
purchasing suit site. So he specifically contended that only

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plaintiff No.1 and defendant have contributed their share for
the purpose of purchasing the site. He further contended that
since plaintiff No.2 is brother of plaintiff No.1 and defendant,
so they got registered the sale deed in the name of all the
three, but plaintiff No.2 has not contributed anything either
for the purpose of purchasing the site or for the purpose of
putting up construction in the purchased site. He further
contended that the plaintiff No.2 joined the service in the
year 2001. In fact in the year 2001 itself, the construction
was completed and house warming ceremony was done on
the same year. When such would be the case, the question
of contribution by the plaintiff No.2 either for the purpose of
purchasing a suit site or for the purpose of putting up
construction in the suit property does not arise at all.

23. He further contended that after purchasing the
site, plaintiffs and defendant with a view to settle in Mandya
after retirement they intended to put up construction in the
suit property, so they obtained loan of Rs.4,00,000/- from the
Punjab National Bank. He further contended that after
construction of the ground floor, they have started to live
together, but due to some differences of opinion among the
family members, the circumstances forced them to put up
two houses in the first floor, so by obtaining loan from the
friends, they have put up two houses in the first floor and
also one shop in the ground floor. He further contended that
thereafter wards that the plaintiffs have started to live in the
first floor, but subsequently they left the said houses and
given the same on rental basis and they have started to live

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in their father-in-law's house. What he contended that the
plaintiffs are themselves receiving rent from the tenant in
respect of the two houses in the first floor.

24. He further contended that apart from obtaining
loan of Rs.4,00,000/- from the Punjab National Bank, the
defendant and the plaintiff No.1 have contributed
Rs.3,00,000/- each again for the purpose of construction of
the house. He further contended that apart from that the
defendant has also purchased construction materials. In
order to substantiate the said aspect, he placed his reliance
upon Ex.D.22 & Ex.D.23 i.e., receipt issued by Sri.
Venkateshwara Glass Plywood and Hardware and Ameen
Timber Traders and Sri. Venkateshwara Wood Plying
Industries and Paladi Trading Company. By placing his
reliance upon the said document, what he contended that for
the purpose of construction, major portion of the amount was
invested by the defendant.

25. He further contended that after obtaining loan of
Rs.4,00,000/- by the plaintiffs and defendant from Punjab
National Bank, the plaintiffs did not cared and bothered for
the repayment of the loan installments. Though the
defendant requested them to pay their respective share
towards installments, but they did not cared for his request.
Ultimately they became defaulter in the matter of payment of
loan installments. So the Punjab National Bank authorities
caused notice for payment of the loan installments which is
very evident from the documents i.e., notice issued by the

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Punjab National Bank at Ex.D.4 and the correspondence
letters in between the plaintiffs and defendant and the Bank
authorities at Ex.D.1, Ex.D.5 to Ex.D.11. He further
contended that ultimately the Punjab National Bank
authorities issued auction notice to the plaintiffs and
defendant, even the defendant has brought the said factum
to the notice of plaintiffs personally, inspite of that they did
not bothered to take any steps to clear off the loan obtained
by them. The defendant in order to rescue the property by
obtaining loan from his friends got cleared loan obtained by
them from Punjab National Bank. The learned counsel for
the defendant in order to prove the factum of the defendant
obtained loan from his friends circle, he has placed his
reliance upon the evidence of Dw-2 to 5. The very evidence
given by them clearly shows that the defendant has obtained
loan of Rs.1,00,000/- each from Dw-2 to 4 and Rs.2,00,000/-
from Dw-5, from the said amount he has cleared off the loan
obtained by them from Punjab National Bank. In order to
prove the factum of defendant himself has cleared off the
said loan he has placed his reliance upon Ex.D.20 i.e., loan
clearance certificate issued by Punjab National Bank. The
said document itself clearly goes to show that the defendant
himself alone has cleared the loan obtained by the plaintiffs
and defendant for the purpose of construction of house in the
suit site. So the learned counsel for the defendant by placing
his reliance upon the evidence of Dw-1 to 5 and the
documents got marked through Dw-1 at Ex.D.1 to Ex.D.24
contended that though the suit property was purchased in
the joint name of plaintiffs and defendant, but the plaintiff

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No.1 and defendant have paid amount for the purpose of
purchasing the site, the plaintiff No.2 has not paid anything
for the purpose of site. He further contended that the very
oral & documentary evidence adduced & produced by the
defendant side clearly shows that he alone has cleared loan
obtained from Punjab National Bank apart from investing
major portion of amount for the purpose of construction of
the house. When such would be the case, though the
property purchased in the joint name of the plaintiffs and
defendant, but for the above said reasons i.e., major portion
of the amount invested by him for the purpose of
construction and though they jointly obtained loan, but the
plaintiffs have failed to pay their part of loan amount, so the
defendant is alone entitled to retain the entire suit schedule
property. So in view of his above arguments, he urged to
answer issue No.1 in the negative and issue No.3 & 4 in the
affirmative.

26. In the light of the arguments canvassed by the
respective counsels for the parties, I have gone through the
records. Admittedly this is a suit filed by the plaintiffs seeking
their $1/3^{rd}$ share each in the suit schedule property and
for such other reliefs. Upon hearing the rival contentions, it
shows that absolutely there is no much dispute with regard
to the factum of purchasing site jointly in the name of
plaintiffs and defendant for the total sale consideration
amount of Rs.1,55,000/- on 22.2.1999 from one Shambu s/o
Bandigowda. The main dispute between the parties is that it
is the contention of the plaintiffs that they have jointly

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purchased the site. On the contrary, it is the contention of the
defendant that the plaintiff No.1 and himself alone
contributed for the purpose of purchasing the site and
plaintiff No.2 has not contributed anything, as because at
that particular point of time, he was a student and not an
earning member. So also upon hearing rival contentions, it
shows that absolutely there is no much dispute between the
parties with regard to the factum of obtaining loan of
Rs.4,00,000/- from Punjab National Bank. But the grievance
of the defendant is that after obtaining loan from Punjab
National Bank, the plaintiffs did not bothered to clear off the
loan obtained by them. Per contra, it is the contention of the
plaintiffs that all the three together have cleared off the loan
obtained by the Punjab National Bank.

27. In the light of the above rival contentions taken by
the respective parties, on going through Ex.P.1 i.e., certified
copy of registered sale deed pertaining to the suit property, it
shows that the same was purchased jointly on 22.2.1999 in
the name of plaintiffs & defendant for total sale consideration
amount of Rs.55,000/-. It is the specific contention of the
defendant that the plaintiff No.2 has not contributed anything
for the purpose of purchasing the site. Though he contended
like so, but upon perusal of Ex.P.1, nothing has been
mentioned in the said documents with regard to the share
amount not paid by the plaintiff No.2 for the purpose of
purchasing the site and even upon perusal of the Ex.P.1, no
where with regard to the factum of contribution not made by
the plaintiff No.2 stated in the said documents. On the

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contrary, the perusal of the said document clearly shows that
all the three together purchased the said property. The
contention of the defendant that even plaintiff who has been
examined as pw-1 during the course of cross-examination
admitted that plaintiff No.2 has not made any contribution for
the purpose of purchasing site. No doubt upon perusal of the
cross-examination of pw-1 he has admitted that plaintiff No.2
has not contributed any amount for the purpose of
purchasing the site. But the plaintiff No.1 in his evidence has
stated that plaintiff No.2 before obtaining the Government job
was working as a part time lecturer. Even pw-3 who is none
other than the plaintiff No.2 in his examination in chief has
stated that prior to obtaining government job he was working
as a part time lecturer. The plaintiff No.2 in order to prove the
said aspect, he has produced Ex.P.18 i.e., attendance
certificate issued by the Principal Degree College, Keragodu.
Under such circumstances, the say of the defendant that at
the time of purchasing the site, the plaintiff No.2 was
unemployed cannot be accepted. Apart from that Dw-1 i.e.,
defendant in his cross-examination at pg. No.7 admitted that
plaintiff No.2 was temporarily working in the year 1994. At
this juncture, it would be relevant to quote the said admission
given by Dw-1 during the course of cross-examination at pg.
No.7 which reads as under:
“1994 gÀ°è ¸ÀÄgÉÃ±ÀgÀªÀgÀÄ PÉ®¸ÀPÉÌ ¸ÉÃjzÀÝgÀÄ JAzÀgÉ vÁvÁÌ°PÀªÁV PÉ®¸ÀPÉÌ
¸ÉÃjzÀÝgÀÄ JAzÀÄ ¸ÁPÀëöå £ÀÄr¢zÁÝgÉ.”
Further again in the same para 5th line wherein he has
admitted as under:

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“¤ªÉÃ±À£À RjÃ¢ ªÀiÁqÀ®Ä £Á£ÀÄ ªÀÄvÀÄÛ ¥ÀÅlÖ¸Áé«Ä ºÁUÀÆ ¸ÀÄgÉÃ±À
gÀªÀgÀÄ 3d£À¸ÉÃj ºÀt vÉÆqÀV¹zÉÝªÀÅ JAzÀgÉ ¸ÁQëzÁgÀgÀÄ £Á£ÀÄ ªÀÄvÀÄÛ
¥ÀÅlÖ¸Áé«Ä vÉÆqÀV¹zÉÝªÀÅ JAzÀÄÁ, CzÀgÉ ¸ÀÄgÉÃ±jUÉ ºÀt ¥ÀÅlÖ¸Áé«Ä gÀªÀgÀÄ
PÉÆqÀÄwÛzÝÀgÀÆ E®èªÉÇÃ JAzÀÄ £À£ÀUÉ UÉÆwÛ®è.”
The above very evidence given by defendant clearly
shows that he does not know with regard to the contribution
made by the plaintiff No.2 in purchasing the site as because
it is the case of the plaintiff No.2 that he used to pay that
amount in the hands of plaintiff No.1. In view of the above
evidence given by Dw-1 in his cross-examination it can be
said that the contention taken by the defendant that plaintiff
No.2 has not contributed anything for the purpose of
purchasing the site cannot be accepted. As it is already
stated above plaintiff No.2 who has been examined as Pw-3
in his evidence has stated that he was working as a part time
lecturer from 1994 to 2000 and getting salary of Rs.2,000/-
and he used to pay entire amount in the hands of his brother
i.e., plaintiff No.1. He further stated that in the year 1999, he
has been appointed as a Veterinary doctor and getting salary
of Rs.9,000/- per month. Though he stated like so in his
examination-in-chief when he was put to the test of cross-
examination by the defendant counsel, nothing worth has
been elicited to disbelieve the above said evidence given by
pw-3 i.e., plaintiff No.2. Under the above said circumstances,
whatever the contention taken by the defendant that plaintiff
No.2 has not contributed anything and he himself and
plaintiff No.1 have contributed for the purpose of purchasing
the site cannot be accepted.

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28. Now coming to the arguments canvassed by the
learned counsel for the defendant with regard to the factum
of loan amount of Rs.4,00,000/- obtained by plaintiffs and
defendant from Punjab National Bank and the repayment of
the entire said loan amount with interest by the defendant
alone. It is the contention of the defendant that after
purchasing the site, they started the construction in the suit
site by obtaining loan of Rs.4,00,000/- from Punjab National
Bank. Apart from that the said loan amount, he himself and
plaintiff No.1 have invested Rs.3,00,000/- each for the
purpose of construction. It is the specific contention of the
defendant that he has invested major portion of the amount
for the purpose of construction of the house. In order to
substantiate his contention, he mainly relied upon Ex.D.22 &
Ex.D.23 i.e., receipts issued by Sri. Venkateshwara Glass
Plywood and Hardware and Ameen Timber Traders and Sri.
Venkateshwara Wood Plying Industries and Paladi Trading
Company. The document issued by the Poladi Trading
company dtd.16.3.2001 shows that it is not a receipt for
having paid amount, it is only a quotation given by the said
Paladi trading company. Upon perusal of the said receipts/
documents, it shows that it does not disclose the name of
person in whose favour the receipts are issued and also
some documents does not disclose neither the seal nor the
signature of the person who has issued the same. Under
such circumstances, merely on the basis of the production of
those receipts, it would not be possible to come to the
conclusion that the defendant has spent that much of

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amount as shown in the said receipts. Apart from that in
order to prove the factum of he has purchased the materials
shown in the said documents, he has not brought the
evidence of the person who has issued the same. Apart from
that though the defendant contended that he has contributed
major portion of the amount for the purpose of construction
of the house and also for purchasing the materials required
for the construction, but the defendant during the course of
his cross-examination admitted that even the plaintiffs have
also purchased the construction materials. At this juncture, it
would be relevant to quote the said portion of evidence given
by Dw-1 during the course of his cross-examination at
pg.No.6 last 3 lines wherein he admitted as under:
“ ªÀÄ£É PÀlÖ®Ä ¨ÉÃPÁzÀ ¸ÁªÀiÁVæUÀ¼À£ÀÄß vÀgÀ®Ä ¥ÀÄlÖ¸Áé«ÄAiÀÄªÀgÀÄ zÀÄqÀÄØ
PÉÆqÀÄwÛzÀÝgÀÆ E®è JAzÀÄ ¸ÀÄ¼ÀÄî ºÉÃ¼ÀÄwÛzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è PÉ®ªÀÅ
¸ÁªÀiÁ£ÀÄ vÀgÀ®Ä zÀÄqÀÄØ PÉÆqÀÄwÛzÀÝgÀÄ JAzÀÄ M¦àzÁÝgÉ.”
Again Dw-1 in his cross-examination at 11th line from the
bottom wherein he has deposed as under:
“
ªÀÄ£É ¸ÁªÀiÁ£ÀÄUÀ¼À£ÀÄß vÀgÀ®Ä ºÀtªÀ£ÀÄß ¥ÀÄlÖ¸Áé«Ä £À£Àß PÉÊUÉ
PÉÆqÀÄwÛzÀÝgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÁQëzÁgÀgÀÄ ªÀÄÄAzÀÄªÀgÉzÀÄ CªÀgÀÄ vÀgÀÄwÛzÀÝgÀÄ
JAzÀÄ vÁªÀÅ vÀgÀÄwÛzÉÝªÉAzÀÄ GvÀÛj¹zÁÝgÉ.”
Under such circumstances, it is needless to say that on
the basis of the said documents, it would not be possible to
come to the conclusion that the defendant has invested
major portion of the amount for the purpose of construction
of the house.

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29. It is the contention of the defendant that after
obtaining the loan of Rs.4,00,000/- from Punjab National
Bank, the plaintiffs have failed to take care or any steps for
repayment of the loan installments. So all the three have
became defaulters. So the Bank authorities issued notice
calling upon them to pay the installments and the very
documents i.e., the correspondence in between the
defendant and Bank authorities clearly goes to show the
above said fact. Ultimately the Punjab National Bank
authorities issued auction notices. It is the contention of the
defendant that even he personally brought the said aspect to
the notice of the plaintiff, but they gave deaf ears to the said
things. So ultimately in order to save the property he
obtained loan from his friends. In order to prove the said
aspect, he brought the evidence of Dw-2 to Dw-5. All the
witnesses examined on behalf of the defendant as Dw-2 to 5
in their evidence stated that they were told by the defendant
that he has received auction notice from Punjab National
Bank as they have failed to pay the loan obtained from the
Bank, so he is in need of some money. By considering the
request made by the defendant, their evidence shows that
they all gave in all Rs.5,00,000/- to the defendant and they
have specifically stated that the defendant himself voluntarily
executed document for receipt of the said loan and he has
already cleared off the loan. Though the defendant brought
the evidence of the said witnesses and though the said
witnesses stated that the defendant voluntarily executed the
document for having received the loan from them, but in
order to prove the said aspect, those documents have not

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been placed before the court. Under such circumstances,
also it would not be possible to come to the conclusion that
he alone has repaid the entire loan.

30. The defendant in order to prove the payment of
entire loan with interest, he got marked Ex.D.13 to Ex.D.18.
Upon perusal of the said documents, it shows that wherein it
was mentioned that Rs.4,60,000/- paid towards Housing
Loan and the said amount was credited to his account and
the same was adjusted towards the loan amount. No doubt
the said document shows that in all Rs.4,60,000/- paid, but
on the basis of the said documents itself, it cannot be
possible to say that he alone right from the beginning has
paid installments towards the loan amount. On the contrary,
the very document produced by the plaintiffs through Pw-3 at
Ex.P.7 to Ex.P.16, it shows that they have paid Rs.1,31,700/-
but subsequently they may not paid their respective shares
towards the loan amount. Under such circumstances, the
say of the defendant that he alone himself has cleared entire
loan amount cannot be accepted. Since they have became
defaulters, subsequently some interest might have accrued
on the remaining amount, so ultimately as per the document
produced by the defendant at Ex.D.13 to Ex.D.18 when the
defendant has received the auction notice, he might have
paid Rs.4,60,000/-. Even the factum of remaining amount
paid by the defendant as stated above has been admitted by
pw-1 during the course of his cross-examination at pg.No.4
last 3 lines at page No.5 first para wherein he admitted as
under: "It is true that lastly the Bank Authorities have issued

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a final notice informing me about the auctioning of our
property, despite the same he did not discharged that. It is
true that finally this defendant has discharged that entire loan
amount, but I contributed Rs.1,00,000/- for the same. I am
not remembering the date. It is false to say that no such
amount is contributed by me." The above evidence given by
pw-1 during the course of his cross-examination, it shows
that as per Ex.P.7 to Ex.P.16, they have paid some amount
towards loan amount, but subsequently they not paid,
ultimately the remaining amount of Rs.4,60,000/- as per
auction notice issued by Punjab National Bank the defendant
has paid the said amount. The said fact has been admitted
by pw-1 in his evidence as stated above. So merely he has
paid the remaining amount of Rs.4,60,000/- to Punjab
National Bank, on the sole ground the defendant cannot
claim his exclusive right over the suit property. No doubt the
plaintiffs after causing of auction notice and for the purpose
of clearing the final amount, they have not contributed as per
the evidence of pw-1, but so far as that aspect is concerned,
it would be just & appropriate in the interest of justice &
equity to direct the plaintiffs No.1 & 2 to pay their respective
shares in the said amount towards the loan to the defendant,
that would suffice the ends of justice.

31. Apart from that the plaintiffs in support of their
case, they have got marked one document at Ex.P.17, which
is nothing but the agreement entered between themselves
and the defendant. Upon going through the said document, it
shows that the defendant agreed to give the entire property

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to the plaintiffs by accepting Rs.5,25,000/-. Even the said
fact has been admitted by Dw-1 during the course of his
cross-examination at pg. No.7, 2nd para from 3rd line
wherein he deposed as under:
ªÀÄ£É «ZÁgÀzÀ°è £ÀªÀÄä°è «ªÁzÀ GAmÁzÁUÀ ¥ÀÄlÖ¸Áé«Ä ºÁUÀÆ ¸ÀÄgÉÃ±ï
E§âgÀÄ ¸ÉÃj £À£ÀUÉ ¸À®è¨ÉÃPÁzÀ ºÀtªÀ£ÀÄß PÉÆqÀÄªÀAvÉ wÃªÀiÁð£ÀªÁVvÀÄÛ
JAzÀgÉ ¸Àj. ¸ÀÄªÀiÁgÀÄ 5 PÁ®Ä ®PÀë gÀÆ. £ÀµÀÄÖ £À£Àß ºÀt £À£ÀUÉ
PÉÆqÀ¨ÉÃPÁVvÀÄÛ. EzÀPÉÌ ¸ÀA§AzsÀs¥ÀlÖAvÉ MAzÀÄ PÀgÁgÀÄ ªÀiÁrzÉÝªÀÅ JAzÀgÉ ¸Àj.
CzÀ£ÀÄß FUÁUÀ¯ÉÃ ¤¦-17 JAzÀÄ UÀÄgÀÄw¸À®ànÖzÉ. F PÀgÁj£À ¥ÀæPÁgÀ
¥ÀÄlÖ¸Áé«Ä ªÀÄvÀÄÛ ¸ÀÄgÉÃ±ïgÀªÀgÀÄ ºÀt ¸ÀAzÁAiÀÄ ªÀiÁrzÁÝgÉ JAzÀgÉ ¸ÀjAiÀÄ®è.
ªÀiÁrzÉ ªÀÄ£ÉAiÀÄ£ÀÄß ¸Àé®à ºÉÆwÛ£À ¸ÀÄgÉÃ±ïgÀªÀgÀÄ ºÀ ¸ÀAZÁAiÀÄ ªÀiÁrzÁÝgÉ
JAzÀgÉ ¸ÀjAiÀÄ®è. F ºÀtªÀ£ÀÄß ¸ÀAzÁAiÀÄ ªÀiÁrzÀgÉ ªÀÄ£ÉAiÀÄ£ÀÄß ©lÄÖPÉÆqÀ®Ä
£À£ÀUÉ vÉÆAzÀgÉ E®è JAzÀgÉ ¸Àj. ¸ÁQë ¸Àé®à ºÉÆwÛ£À §½PÀ ªÀÄvÉÛ
ªÀÄÄAzÀÄªÀgÉzÀÄ vÁªÀÅ PÀgÁgÀÄ DzÁUÀ ªÀÄ£ÉAiÀÄ£ÀÄß ©lÄÖ PÉÆqÀ®Ä ¹zÀÝjzÀÝgÉAzÀÄ
DzÀgÉ FUÀ ¹zÀÝj®è JAzÀÄ £ÀÄr¢zÁÝgÉ. ªÀÄ£ÉAiÀÄ£ÀÄß PÀlÖ®Ä 3 d£ÀgÀÄ
ºÀtªÀ£ÀÄß «¤AiÉÆÃUÀ ªÀiÁrzÉÝÃªÉ JAzÀgÉ ¸ÀjAiÀÄ®è £Á£ÀÄ ªÀÄvÀÄÛ ¥ÀÄlÖ÷¸Áé«Ä
ªÀiÁrzÉÝÃªÉ.”
The above evidence given by defendant during the
course of his cross-examination, it shows that he has
admitted to give the property to the plaintiffs by accepting
Rs.5,25,000/-. The above evidence given by him shows that
the defendant alone not only contributed for the purpose of
construction of the house. As it is already stated above, the
documents got marked through Pw-3 at Ex.P.7 to Ex.P.16
shows that the plaintiffs also paid some amount towards loan
amount, but subsequently they have not paid amount
towards loan installments. Even the said fact has been
admitted by pw-1 during the course of his cross-examination.

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When such would be the case, the say of the defendant that
he alone paid entire loan amount cannot be accepted. As it
is already discussed above, when the plaintiffs subsequently
have stopped payment of remaining installments, by virtue of
the auction notice issued by the Punjab National Bank
authority, the defendant has paid Rs.4,60,000/- as per
document got marked by him at Ex.D.13 to Ex.D.18. No
doubt pw-1 in his cross-examination stated that he also paid
Rs.1,00,000/- towards the said loan amount, but admittedly
to prove the said aspect, he has not produced any
document, so by taking into consideration all these aspects,
whatever the contention taken by the defendant that he
alone paid the entire loan amount cannot be accepted. So
also upon perusal of over all evidence on record, it can be
said that the plaintiffs and defendant are the joint owners of
the suit schedule property and all the three have contributed
for the purpose of purchasing the site and for the purpose of
constructing the house. When such would be the case,
merely on the basis of the remaining loan amount with
interest paid by the defendant, he is not entitled to claim the
entire property. For the foregoing reasons & discussions,
issue No.1 is answered in the affirmative and issue No.3 is
answered in the Negative, issue No.4 answered partly in the
affirmative.

32. ISSUE NO.2: The plaintiffs have sought for the
settlement of accounts and mesne profits. So far as the said
relief is concerned, no evidence has been placed before the
court and the plaintiffs shall be entitled for the same

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according to law and the same shall be determined in a
separate enquiry. Accordingly, the issue in question is
answered in the affirmative.

33. ISSUE No.5: As per the discussions made herein
above, I proceed to pass the following:
ORDER
1. The suit of the plaintiffs is hereby decreed.
rd
2. The plaintiffs are entitled for 1/3 share each in the
suit schedule property.
3. The plaintiffs are directed to pay Rs.3,06,666/-
(Rs.1,53,333/- each by the plaintiffs No.1 & 2) to the
defendant as observed in the body of the Judgement.
4. Draw preliminary decree accordingly.”
6. Aggrieved by the aforesaid judgment and decree of the
Trial Court while plaintiffs did not prefer any appeal, the appellant –
defendant filed an appeal in R.A.No.26/2015, in which the First
Appellate Court framed points for consideration and answered the
same against the appellant – defendant by holding as under:
“1. Does the plaintiffs prove that they are the owners of
the suit schedule properties and having their 1/3rd share in
the same?
2. Does the plaintiffs prove that they are entitled for
settlement of accounts and entitled for mesne profits as
stated in the plaint?

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3. Does the defendant prove that plaintiff No.2 has not
contributed any amount for purchase of the suit schedule
property and for its construction?
4. Does the defendant proves that he has discharged the
borrowed loans in connection with the plaint schedule
property as stated in the written statement?
5. What order or decree?”

“ 12. POINT Nos. 01 and 2 : As the said points are
inter connected with each other together taken up for
discussion
13. To substantiate the case of the plaintiff, the
plaintiff himself examined as P.W.1 and he has filed
affidavit evidence and reiterated the facts stated in the
plaint. He has stated that there is no partition has taken
place in their family. At the time of purchase of the site
and construction of the house himself and his wife was
working as High School Teacher at Sathanur and plaintiff
No.2 also working as Veterinary Doctor. The defendant
as working as Veterinary Health Inspector. From their
joint income purchased the site and constructed the
house by borrowing the loan of Rs.4,00,000/ from Punjab
National Bank at Mandya branch jointly on 22.08.2000
and discharged the loan and also borrowed money from
friends and relatives. He had also taken personal loan
from Syndicate bank at Mandya and from Cooperative
st
Societies. His evidence shows that in the 1 floor two
houses have been constructed and he borrowed the loan
from his friends. At the time of construction of the two

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houses in the 1st floor and defendant did not allow them
to occupy three houses constructed by them jointly and
they have residing in the rented house.
14. The plaintiff also examined witness P.W.2 K.
Hombaiah elder brother of the plaintiffs and defendant in
support of their contention. P.W.2 also stated in his
evidence that 1st plaintiff giving their salary to him and
the defendant has not giving any salary. In the year 1977
they started to residing separately. On 22.02.1999 1st
plaintiff Puttaswamy paid Rs.1,55,000/ and purchased the
site and site has been registered in the names of the
defendant and plaintiffs. Thereafter they have jointly
borrowed the loan of Rs.4,00,000/ on 28.02.2000 and
also availed loan from their friends and spent
Rs.16,50,000/ and amount has been invested by only the
plaintiffs. Thereafter all of the them reside in the said
house and dispute arose between them. The plaintiffs
driven out of the house and he advised them and entered
an agreement on 27.08.2005 to give Rs.5,25,000/ and
st
house is to be given to the 1 plaintiff. The defendant is
not invested any money.
15. The plaintiff No.2 examined as P.W.3 he has
filed affidavit evidence and reiterated the facts stated in
the plaint. He has stated that he invested the amount to
purchase the site. Site has been registered in the name
of the plaintiffs and defendant and the defendant has not
paid any money to purchase the site. They have also
jointly availed loan of Rs.4,00,000/ in Punjab National

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Bank at Mandya branch. At that time he was bachelor
and himself and 1st plaintiff clear the loans.
16. P.W.4 also deposed in his evidence that his
brother K. Hombaiah came and settled the matter in the
year 1980. After few days dispute arose between
Hombaiah and Plaintiff No.1 and they started to reside
st
separately. In the year 1999 1 plaintiff purchased a site
and got registered in the name of plaintiffs and the
defendant and constructing the house with the income of
st
the 1 plaintiff and his wife. 2Nd plaintiff and defendant
himself assisted him in bringing the materials from
different places and 1st plaintiff has paid entire purchase
amount and the plaintiffs and defendant also availed loan
from Punjab National Bank. But entire loan amount was
repaid by the 1st plaintiff and his wife.
17. P.W.5 Mohana filed his affidavit evidence and
deposed that he knows the plaintiffs and defendant. He
was tenant in the suit property for a period of 4 months
st
and he is paying rent to the 1 plaintiff. Kanthashree wife
of the 1St plaintiff has availed the loan from Syndicate
Bank. 1St plaintiff also borrowed the loan of Rs.70,000/
st
from him. and amount was repaid by the 1 plaintiff after
1 year.
18. The defendant in support of his case got
himself examined as D.W.1 and witness as D.W.2. On
perusal of the evidence of D.W.2 Mariswamy he has
stated that the defendant availed loan of Rs.1,00,000/
from him to clear the loan raised at Punjab National Bank,
Mandya branch and also repaid the loan amount. D.W.3

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D.B. Swamy and D.W.4 B. Andanigowda also stated that
they have also lend a sum of Rs.1,00,000/ each to the
defendant and the defendant repaid the loan amount.
D.W.5 Chandrashekar deposed in his evidence that he
was working as Junior Engineer and the defendant
supplying milk to his house while he was residing in the
house situated at 7th cross, Gandhi Nagara, Mandya City
and he also paid a sum of Rs.2,00,000/ to the defendants
during the year 2006 and said loan also repaid by the
defendant. Admittedly no document has been produced
by the defendant to show that he has availed loans from
D.Ws.2 to 5. On reading the written statement nowhere
the defendant has stated that he has availed loan from
D.Ws.2 to 5 and the written statement did not disclose the
date of availment of loan and repayment of loan by the
defendant.
19. The present suit is filed by the plaintiffs for
partition and separate possession of the plaint schedule
property and for settlement of amount and other reliefs. It
is not in dispute that the site has been purchased by the
plaintiff Nos.1 and 2 and the defendant for consideration
of Rs.1,55,000/ and deed was executed jointly in favour
of plaintiff Nos.1 and 2 and the defendant. In support of
the case of the plaintiffs, the plaintiff also produced
certified copy of the deed Ex.P.1. After purchase of the
site all the brothers jointly borrowed the loan for
Rs.4,00,000/ from Punjab National Bank at Mandya on
22.08.2000 is also not in dispute. The defendant
contended that the plaintiff No.2 is only nominal

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purchaser and he has not contributed any amount
towards purchase of the site or put up construction and
he was still student at that time. The defendant also
denied that plaint schedule property has been acquired
out of the joint family funds. The defendant contended
that sale consideration amount is contributed only by the
plaintiff No.1 and the defendant. 2nd plaintiff has not paid
any amount towards loan borrowed at Punjab National
Bank and entire amount has been cleared by the
defendant. The defendant is also received notice from the
bank demanding the plaintiffs and the defendant to repay
the loan and entire loan amount was discharged by him
and obtain the clearance certificate from the bank. The
defendant also contended that plaintiff No.1 might have
contributed some amount towards purchase of site and
Rs.3,00,000/ for construction of the suit property. The
plaintiff No.2 has not contributed any amount towards
purchase the site and construction of the suit property.
On perusal of Ex.P.1 certified copy of the sale deed
dt.22.02.1999 is in the name of the plaintiffs and
defendant. The plaintiffs and defendant jointly purchased
the property for consideration of Rs.1,55,000/. On perusal
of Ex.P.2, P.3 and P.5 tax also paid by the plaintiffs and
defendant jointly and they have also filed declaration as
per Ex.P.4 to C.M.C., Mandya. On perusal of Ex.P.6 letter
dt.22.06.2007 issued by Manager, Punjab National Bank,
Mandya to the plaintiffs and defendant with regard to
closers of the loan borrowed by them. On perusal of
Ex.P.7, 9 10, 12, 13, 15 and 16 counter files issued by

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the Punjab National bank for having paid loan
installments by the plaintiffs and defendant jointly . On
perusal of Ex.P.8, P.11 and P.14 counter files shows that
1st plaintiff has paid a sum of Rs.82,000/ to the Punjab
National Bank individually. On perusal of Ex.P.8, P.11
and P.14 sum of Rs.82,000/ has been paid by the 1st
plaintiff. On perusal of Ex.P.18 Attendance Certificate
issued by Principal, Rural 1st Grade P.U. College,
Keragodu shows that the plaintiff No.2 is also working as
Lecturer, from 199495 to 19992000. On perusal of
recitals in Ex.P.1 both the plaintiffs and defendants
purchased the site by paying amount jointly. Hence, the
nd
contention of the defendant/appellant 2 plaintiffs has
not contributed any amount for purchase of the site can
not be accepted. On perusal of Ex.P.17 agreement dt.
27.05.2005 entered into between the plaintiffs and the
defendants shows that wherein the plaintiffs have agreed
to pay Rs.5,25,000/ to defendants towards his share in
respect of the suit property.
20. On perusal of the evidence of the defendant,
defendant disputed only issue No.2 regarding settlement
of accounts and for mesne profits. On perusal of the
entire documents produced by the plaintiffs and
defendant no documents have been produced to
substantiate their claims regarding expenses incurred by
them towards construction of the house and what is the
total amount spent by the plaintiffs or defendant for
construction of the house. It is not in dispute that loan
was taken by jointly by the plaintiffs and defendant in the

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Punjab National Bank. On perusal of the document
produced by the defendant. It is clear that notice has
been issued by bank to clear the loan amount and
property was put into the auction and the defendant also
written letter to the bank on 01.09.2006 to issue
clearance certificate as he has repaid the loan amount to
the bank. On perusal of Ex.D.20 the Manager, Panjab
National Bank has written letter Dt:11092006 to the
defendant to the stating that the amount of Rs.4,60,000/
is repaid by the defendant through Savings Bank Account
No.2527000102081040 maintained with them and entire
housing loan stands fully repaid and there are no dues
regarding house loan availed by the defendants and his
two brothers. It is clear from Ex.D.20 the loan amount of
Rs.4,60,000/ has been paid by the defendant through his
S.B. Account.
21. On perusal of the counter files produced by the
plaintiffs except Ex.P.8, 11 and 14 and other Ex.P.7, 9,
10, 12, 13, 15 and 16 jointly paid the loan to the Punjab
National Bank at Mandya branch by the plaintiffs and
defendants. On perusal of the plaint averements there is
no pleading in respect of the materials purchased by the
plaintiffs and the defendant and amounts spent towards
purchase of the materials towards construction of the
house in the property mentioned in Ex.P.1. It is clear from
Ex.P.1 the plaintiffs and the defendants have paid
Rs.1,55,000/ to acquire the site and house has been
constructed for availing the loan of Rs.4,00,000/ from
Punjab National Bank. The plaintiffs have contended that

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the amount have been paid jointly by the plaintiffs and
defendant. The receipts Ex.P.7, P.9, P.10, P.12, P.13,
P.15 and P.16 amount Rs.49,700/ has been jointly by the
plaintiffs and defendant. On perusal of Ex.P.8, P.11 and
P.14 shows that plaintiff No.1 has paid Rs.82,000/
individually towards loan installment . On perusal of
Ex.D.20 amount of Rs.4,60,000/ has been deposited as
paid by the defendant from his S.B. account
No.2527000102081040. It is clear from the said
documents the defendant has paid Rs.4,60,000/ towards
loan raised by the plaintiffs and defendant jointly in
Punjab National bank at Mandya. On perusal of Ex.D.19
also shows that the defendant has written letter to the
Manager, Punjab National Bank isalready paid 4,10,000/
on 26.08.2006 and also paying Rs.30,000/ towards loan
amount and where the balance amount under OTS. The
defendant also produced the document Ex.D.22 series for
having purchased the materials. But no document has
been produced to show the payment made towards
purchase of the materials except producing cash bills.
22. On perusal of Ex.D.23 series dt.04.07.2001,
15.12.2001, 21.11.2001, 11.12.2001, 14.12.2002,
23.01.2002, 18.12.2001, 21.01.2001 and 23.04.2001
shows some materials have been purchased by the
defendant towards construction of the house for
Rs.32,808/. The defendant also produced two Quotations
dt.16.03.2011 and bill dt.01.07.2001, 25.07.2001,
05,07,200117.07.2001 and 15.07.2001, 06.08.2001,
01.02.2001 and 02.04.2009. No documents has been

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produced to show that the said bill amount has been paid
to the owners. The payment receipts are not produced.
The defendant also produced document Ex.D.25 letter
st
dt.07.08.2009 issued by Principal, 1 Grade P.U. college,
nd
Keragodu shows that the 2 plaintiff is working as
Lecturer from 02.12.199499 to 21.07.1999. The specific
contention of the defendant that the plaintiff No.2 has not
contributed anything of purchase of the site and for
construction of house. Admittedly, no documents has
been produced by the plaintiffs to show that amount
invested by eachone of them at the time of purchase of
the site. But Ex.P.1 shows that the plaintiffs and
defendant jointly purchased the said property. P.W.1 also
admitted in his cross - examination that the plaintiff No.2
has not contributed any amount for purchase of site.
P.W.3 who is 2nd plaintiff stated that he was working as
Lecturer in the year 1994, it is also admitted by D.W.1 at
the time of corss examination. D.W.1 also stated that he
does not know whether contribution made by the plaintiff
st
No.2 to the 1 plaintiff while purchase of the site. It is the
contention of the defendant that 2nd plaintiff has not
contributed any amount towards purchase of site cannot
be accepted. Ex.P.1 shows that the properties purchased
jointly. Admittedly the documents produced by the
defendant clearly shows that he has cleared loan of
Rs.4,60,000/ and apart from the said amount plaintiff
No.1 himself invested the Rs.3,00,000/ each for the
purpose of construction of the house and he has invested
the major portion of the amount while constructing the

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house. The contention of the defendant is also
corroborated with the documentary evidence. The
documents Ex.D.23 series shows he has paid money
towards purchase of the materials. The quotations
produced by the defendant cannot be accepted. The
receipts produced by the defendant is marked without
any objections. No objections has been raised while
marking the said documents. D.W.1 admitted that some
materials was purchased by the 1plaintiff and he has also
purchased the materials. The said fact is supported by
Ex.D.23 cash bills dt.04.07.2001, 15.12.2001,
21.11.2001, 11.12.2001, 14.12.2002, 23.01.2002,
18.12.2001, 21.01.2001 and 23.04.2001. The defendant
also contended that after availing the loan from Punjab
National Bank, the plaintiffs have failed to repay the loan
installments and they became defaulter and notice has
been issued to them by the bank and he obtained loan
from his friends. In support of his contention the
defendant also examined D.Ws.2 to 5. On perusal of the
evidence of the D.Ws.2 to 5 they have stated that the
defendant availed loan from them and cleared the loan.
The said contention of the defendant cannot be accepted
for the reason that there is no defence in the written
statement. On reading of the written statement nowhere
the defendant has stated that he has availed loan from
D.Ws.2 to 5. Date of loan, execution of the document,
date of repayment of loan is not mentioned in the written
statement. The defendant has filed application U/sec.41
Rule 21 of CPC produced 4 documents dt18.08.2006,

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24.08.2006, 25.08.2006 and 26.08.2006. The said
documents are unregistered documents. No pleadings
regarding the said documents in the written statement.
No reasons have been stated for delay in production of
the documents. As there is no pleadings the contention of
the defendant cannot be accepted. The notice and reply
notices. Ex.D.13 counter foil produced by the defendant
shows that he has paid sum of Rs.4,10,000/ to the
Punjab National Bank towards housing loan account No.
527000102081040. On perusal of Ex.D.13 to D.18 shows
that the defendant has paid Rs.4,50,000/ to the Punjab
National bank, Manyda branch, which is also
corroborated by Ex.D.20 the letter dt.11.09.2006 written
by the Manager, Punjab National Bank at Mandya to the
defendant.
23. On perusal of Ex.P.8, P.11 and P.14 produced
st
by the 1 plaintiff also shows that he has paid Rs.82,000/
individually to the Punjab Nationa Bank, Mandya. On
perusal of Ex.P.7, P.9, P.10, P.12 and P.13, P.15 and
P.16 shows that the plaintiffs and the defendant jointly
paid Rs.49,700/. Hence, the contention of he 1st plaintiff
he alone paid the loan installments cannot be accepted. It
is clear from the documents that the Manager of the
Punjab National Bank have issued notice for auctioning
the property and the defendant has discharged the
amount of Rs.4,60,000/ as seen from Ex.D.20. Admittedly
the defendant cannot claim exclusive right over the suit
property. The plaintiffs and defendant having equal rights
over the suit property. The plaintiffs Nos.1 and 2 and

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defendant are jointly liable to pay the loan amount.
Admittedly, the documents produced by the defendant
shows that he has paid sum of Rs.4,60,000/ and also
produced some material purchased bills worth of
Rs.37,958/. On perusal of Ex.P.17 shows that the
defendant agreed to give the entire property to the
plaintiffs by receiving Rs.5,25,000/. But it is an
unregistered document. The defendant has no right to
relinquish under an unregistered documents. Hence, the
plaintiffs cannot claim any right under the said document.
The defendant also stated that he is not ready to
relinquish his right. Admittedly no document has been
produced by the 2nd plaintiff to shows that he has spent
money for construction of the house by purchasing
except the receipts Ex.P.7, P.9, P.10, P.12 and P.13,
P.15 and P.16 jointly paid loan installments and paid sum
amount towards loan amount and subsequently not paid
loan amount by the plaintiffs. P.W.1 also stated that he
has also stated that he has also spent amount of
Rs.1,00,000/ for construction of the house. No document
st
has been produced by the 1 plaintiff in support of his
contention. In the absence of documentary evidence
contention of the plaintiffs cannot be accepted. It is clear
from Ex.P.1 the plaintiffs and the defendant are the joint
rd
owners of the suit property and entitled for 1/3 share
each in the suit property. Regarding amount spent
towards construction of the house, the plaintiffs are liable
to pay the amount to the defendant with respect of the
loan of Rs.4,60,000/ raised by them in Punjab National

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Bank at Mandya and the amount of Rs.32,808 spent by
the defendant towards purchase of the materials for
construction of the house and also Rs.16,566/ share of
loan installments jointly paid by the plaintiffs and
defendant. Hence, the plaintiff No.1 is directed to pay a
sum of Rs.1,56,121/ to the defendant after deducting
Rs.82,000/and Rs.16,566/ (share towards loan
installment) and plaintiff No.2 to is directed the pay a sum
of Rs.2,38,121/ after deduction Rs.16,566/ towards his
share of loan. Hence, Plaintiff No.1 is directed to pay sum
of Rs.1,56,121/ and plaintiff No.2 is directed to pay sum
of Rs.2,38,121/ to defendant No.1 and hence, I answer
point No.1 in the affirmative and point No.2 in the partly
affirmative.
24. Point No.3 : In view of my findings on the point
Nos.1 and 2, I proceed to pass the following;
ORDER
The judgment and decree passed by
the Prl.Senior Civil Judge & CJM, Mandya,
dated 07.03.2015 in O.S.No.05/2008 is
modified.
The appellant/defendant and
respondents/plaintiffs are entitled for the 1/3rd
share each in the suit schedule property.
The appellant/defendant is entitled for
Rs.3,94,242/. The respondent No.1/1st plaintiff
is directed to pay Rs.1,56,121/ .The
respondent No.2/2nd plaintiff is directed to
pay Rs.2,38,121/. to the appellant/defendant.
No order as to costs.
The Regular Appeal filed by the
appellant/ defendant U/o XLI Rule 1 R/w/sec.96
of C.P.C. is disposed off accordingly.
Draw preliminary decree accordingly.”

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7. I have given my anxious consideration to the rival
submissions and perused the material on record.

8. As can be seen from the judgment and decree passed
by the First Appellate Court, while the findings of the Trial Court
rd
that the plaintiff Nos.1 and 2 are entitled to 1/3 share in the suit
schedule property was upheld by the First Appellate Court by
coming to the conclusion that the Trial Court was fully justified in
declaring that plaintiff No.1, plaintiff No.2 and the defendant were
rd
entitled to 1/3 share each in the suit schedule property, the
judgment and decree of the Trial Court directing the plaintiff Nos.1
and 2 to pay a sum of Rs.1,53,333/- to the defendant was modified
by directing the plaintiff No.1 to pay a sum of Rs.1,56,121/- to the
defendant and also directed plaintiff No.2 to pay a sum of
Rs.2,38,121/- to the defendant.

9. Learned counsel for the appellant would reiterate the
various contentions urged in the appeal and refer to the material on
record and submitted that in the absence of any
contributions/share being made by plaintiff No.2 either towards
purchase of the suit schedule property or putting up construction or

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repayment of loan, both the Courts committed an error in declaring
rd
that plaintiff No.2 was entitled to 1/3 share in the suit schedule
property and as such, the impugned judgment and decree passed
by the Trial Court and the First Appellate Court deserve to the set
aside. It is also submitted that while the Trial Court and the First
Appellate Court directed the plaintiffs to pay some money to the
appellant – defendant towards cost of construction and repayment
of loan, both the Courts committed an error in not directing the
plaintiffs to pay interest on the said amount and the impugned
judgment and decree passed by both the Courts deserve to be set
aside on this ground also.

10. Per contra, learned counsel for the respondent would
support the impugned judgment and decree passed by both the
Courts and submits that there is no merit in the appeal and the
same is liable to be dismissed.

11. Before adverting to the rival contentions, it would be
necessary to extract Section 45 of the Transfer of Property Act,
which reads as under:
“45. Joint transfer for consideration.—

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Where immoveable property is transferred for consideration to two
or more persons and such consideration is paid out of a fund
belonging to them in common, they are, in the absence of a
contract to the contrary, respectively entitled to interests in such
property identical, as nearly as may be, with the interests to which
they were respectively entitled in the fund; and, where such
consideration is paid out of separate funds belonging to them
respectively, they are, in the absence of a contract to the contrary,
respectively entitled to interests in such property in proportion to
the shares of the consideration which they respectively advanced.

In the absence of evidence as to the interests in the fund to which
they were respectively entitled, or as to the shares which they
respectively advanced, such persons shall be presumed to be
equally interested in the property.”

12. As can be seen from the aforesaid provisions,
whenever an immovable property is purchased by two or more
persons for consideration, and in the absence of a contract to the
contrary, all purchasers would be entitled to their respect shares in
proportion to their contribution; the said provision also
contemplates that in the absence of any evidence as to the
interests in the fund to which they were respectively entitled, or as
to the shares which they respectively advanced, such persons shall
be presumed to be equally interested in the property; in the instant
case, the material on record clearly indicates that the plaintiffs and

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defendant jointly purchased the suit schedule property from their
vendor for a sale consideration of Rs.1,55,000/- on 22.02.1999; the
recitals of the said Sale Deed would clearly indicate that all the
three purchasers i.e., plaintiff Nos.1 and 2 and the defendant jointly
contributed for purchase of the suit schedule property in the year
1999; the recitals of the Sale Deed also do not indicate any
difference in the share contribution made by plaintiff Nos.1 and 2
and defendant; on the other hand, the only inference that can be
drawn from the recitals of the Sale Deed and the material on record
is by coming to the conclusion that all the three purchasers
contributed equally for purchase of the suit schedule property from
the vendor; in other words, in the absence of any contra material to
indicate that any different contributions were made by the plaintiffs
or defendant for the purchase of suit schedule property, the
presumption under Section 45 of the Transfer of Property Act
would get attracted thereby leading to the sole conclusion that all
three brothers contributed equally for purchasing the suit schedule
property. Under these circumstances, I am of the considered
opinion that that the Trial Court was fully justified in coming to the
conclusion that the suit schedule property having acquired /

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purchased jointly by plaintiffs and defendant, all three of them
rd
would be entitled to 1/3 share each in the suit schedule property.

13. Insofar as the contention urged by learned counsel for
the appellant – defendant that both the Courts committed an error
in not awarding interest on the amount payable by the respondents
– plaintiffs to the appellant is concerned, it is relevant to state that
while it is specifically contended that he had contributed 50%
towards purchase of the suit schedule property and the plaintiffs
have not contributed any amount towards construction, repayment
of loan and that without any contribution in this regard by the
plaintiffs, the appellant – defendant did not put-forth a counter
claim seeking recovery of money from the plaintiffs in relation to
the cost of construction and / or any expenditure incurred by him
towards repayment of the loan, and / or discharge there being any
counter claim by the appellant – defendant as regards money
spent by him towards cost of construction and towards repayment
of loan, both the Courts adopted a equitable approach and came to
the conclusion that based on the material on record, the appellant
– defendant had spent huge sum of money towards construction

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and that the plaintiff Nos.1 and 2 were liable to repay the same in
favour of the appellant – defendant.

14. In my considered opinion, having regard to the fact
that the Trial Court and the First Appellate Court has adopted a
equitable approach and directed the plaintiffs to pay the aforesaid
sum of money to the defendant without relegating the parties to
work out remedies in this regard during the Final Decree
Proceedings, the question of interfering with the judgment and
decree of the Trial Court and the First Appellate Court on the
ground of non-granting of interest would not arise in the facts and
circumstances of the instant case especially when there was no
counter claim either for payment of money or for interest at any
rate sought for by the appellant – defendant in the said appeal
before the First Appellate Court. Under these circumstances, I do
not find any question of law much less substantial question of law
arise for consideration in the present appeal, which is accordingly
hereby dismissed .
Sd/-
(S.R.KRISHNA KUMAR)

JUDGE
SV; List No.: 1 Sl No.: 48