B. RAMESH, S/O. ANATHA BHATTA Vs. SMT. LALITHA, W/O. VASANTH, SMT. GAYATRI, W/O. MOHAN AND SRI. KAUSHIK, S/O. SRI. B. RAMESH

JUDGEMENT

(1.) THE Appellant who was Defendant No. 1 in the suit is challenging the judgment and decree passed by the XXII Additional City Civil Judge, Bangalore on 30th July 2003 in O.S. No. 6062/1999.

(2.) THE brief facts leading to this appeal are: The Plaintiff and the Appellant -Defendant No. 1 are the children of one Anantha Bhatta who died on 22 -11 -1986. The second Defendant is the minor son of the first Defendant. Mother of the Plaintiffs and Defendant No. 1 predeceased their father and she died in the year 1985. According to the plaint averments, Late Anantha Bhatta had possessed vast properties he under an allotment of his share at partition drawn on 14 -2 -1971. Anantha Bhatta had also possessed a Coffee Estate and he was also getting income from aracanut garden. He was a permanent resident of Koppa in Chikkamagalur District and he was looking after the lands and rarely he used to stay at Bangalore in the house set up by him at Shankar Mutt. The first Defendant married in the year 1974 and later he secured a job as Clerk in the year 1977 at Vijaya Bank. According to the plaint averments, the first Defendant was not contributing his income towards the maintenance of the family and that he was solely guided by his wife and parents -in -law. Anantha Bhatta had a Coffee estate of 43 acres and he was personally attending to aracanut cultivation and that the property left behind by Anantha Bhatta was ancestral property and to the best of knowledge of the Plaintiffs, Anantha Bhatta died intestate. According to the plaint averments, Anantha Bhatta had also gold and silver articles at home. After the death of Anantha Bhatta, the first Defendant has taken away all the gold and silver articles. It is also stated that some of the family lands were also lost under the Karnataka Land Reforms Act in favour of the tenants. Therefore, the Plaintiffs filed a suit claiming 1/6th share by each of them.

(3.) THE suit filed by Anantha Bhatta was ended in compromise. In terms of compromise, Anantha Bhatta agreed to pay a sum of Rs. . 1,30,000/ - with interest on or before 20 -3 -1986 in addition to the advance sale consideration of Rs. .21,000/ - paid by him at the time of entering into an agreement. It was also agreed in the compromise that if the amount of Rs. . 1,30,000/ - is not paid on or before 20th March 1986, the agreement of sale stands cancelled and the suit stands dismissed with costs. Since Anantha Bhatta had no capacity to raise funds, in the compromise petition it was specifically agreed that Sree SringeruMutt to obtain registered sale deed either in his name or in the name of the first Defendant or jointly in the name of Anantha Bhatta and the first Defendant. So that the first Defendant may avail loan from his employer M/S. Vijaya Bank Limited. Therefore, it was agreed that a sum of Rs. . 1,30,000/ - + interest had to be paid to the Shankar Mutt in order to acquire the plaint item No. 1 of the suit property. Pursuant to the compromise petition, the decree was passed on 21st September 1985. Since, the first Defendant could not raise loan from his Employer, he and his father applied for loan with Vyalikaval House Building Co -operative Society ('the Society' for short) and the Society sanctioned the loan of Rs. . 1,24,000/ -. Accordingly, the sale deed was registered jointly in the name of Anantha Bhatta and the first Defendant. Immediately after obtaining the sale deed, Anantha Bhatta died without discharging the loan borrowed from the Society. In the circumstances, Defendant No. 1 obtained the loan of Rs. . 1,10,000/ - from Vijaya Bank in order to discharge the loan payable to the Society. The entire loan of Rs. . 1,10,000/ - borrowed by him from Vijaya Bank from and out of his monthly income on installment basis. Again by borrowing the loan, he had put up construction on the first floor and he completed the construction on the first floor in the year 1995. The first Defendant alone has discharged the loan borrowed by him from Vijaya Bank in order to put up the first floor in item No. 1 of the plaint schedule properties. Therefore, he contended that the first Defendant has become the absolute owner of the plaint Item No. 1 and he further contends that Anantha Bhatta during his lifetime has executed a Will on 11th June 1984 bequeathing his share in the joint family properties in favour of the Plaintiffs and Defendant subject to the Plaintiffs and the first Defendant discharging the loan of Anantha Bhatta proportionate to the share allotted to the Plaintiffs and the first Defendant.