IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE UDIPI O.S.NO.

63/2011

Between Sundari Poojarthy And Madhava Kallyanpur and another . Defendants . Plaintiff

WRITTEN STATEMENT FILED BY THE DEFENDANT NO.1 UNDER ORDER VIII RULES 1 & 2 OF THE CODE OF CIVIL PROCEDURE 1908.

The Defendant abovenamed begs to state as follows: 1. That the suit is false and frivolous to the extent denied and the same is not maintainable in law and on merits. 2. That the averments made in plaint para nos.III (3 to 9) are false and hence denied. It is submitted that the plaint property (it is termed as plaint A schedule property though it is not described properly in the plaint) was a chalageni holding of late Sri Appu Poojari, the father of the plaintiff as well as the defendants, who passed away somewhere at the end of 1971 leaving behind his widow Smt.Seethu Poojarthy 4 sons and a daughter viz. Kariyppa, Sundari, Madhava, Shekara and Chandra as his only legal heirs. At the advent of the Karnataka Land Reforms Act 1961, his widow Smt.Seethu Poojarthy has filed an application before the Udipi Land Tribunal for conferment of occupancy right for and on behalf of the family. It was not on an exclusive tenancy right of the said Seethu Poojarthy. 3. That it is further submitted that the plaintiff has started working somewhere in 1967-68 as Anganvadi cook drawing a salary of Rs.100/- p.m. Prior to 1967, plaintiff had 2 minor sons, one 6 years and other 3 year old. With this small salary how can it possible to maintain herself and her 2 minor sons. Except the same she had no other source of income. As a matter of fact she was not able to maintain herself in that meager amount of salary. Since there has been a burning property in the family, this defendant after completing his PUC from Milllagres College,

Kallianpur and shorthand typing examination, shifted himself to Mumbai somewhere in 1969 and joined his late brother Kariyappa and from mid of 1970 he started working as Partime Steno for a well known Homoeopathic Doctor at Santacruz (West) for a starting salary of Rs.75/p.m. and very soon he got a fulltime job as Steno for a Bombay High Court Advocate, at Fort for starting salary of Rs.175/-pm. As the father of this defendant i.e. Appu Poojary died somewhere during 1970 and soon after his brother Kariyappa died leaving behind his widowed wife Bhagirathi and 2 minor daughters. As we have all came for our late father s (Appu Poojari) funeral and after the ceremony I left for Mumbai and after few days Kariyapa left for Mumbai leaving his his family at Kallianpur/Nadanbali thinking that he can bring them after the school summar vacation. After two months (April-May), for our bad luck late Kariyappa was hospitalized at Santacruz (West) and within 3 days of his hospitalization, he he expired suddenly and then this defendant gone back to his village for performing Kariyappas last ritiuals and left for Mumbai for his livelihood. This defendant was completely shaken without any help from any of his relatives at this juncture and he worked very hard to earn more to overcome the difficulties of his family. Then he started working one more part-time steno job during evening hours after 8 p.m. for Bharat Sales Corpn. Santacruz (West) for a salary of Rs.75/-. This defendant also worked on all Sundays and holidays with a intention of overcome the difficulties faced by him and his family members. Gradually this defendants salary also increased and his income was quite good per month and slowly we have overcome the difficulties of the past and regulary send money orders to Plaintiff. The above facts were known to the Plaintiff as well as Defendant No.1. Somewhere in the year 1968 this Defendant joined as Correspondence Asst. for Bajaj Electricals Ltd. In their Legal and Secretarial Dept. for a very good salary and all other benefits. After working for his this limited company nearly 6-7 years, this Defendant again changed his job and joined Godfrey Phillips (India) Ltd. (year 1985) a multi national USA company, in their factory at Andheri (East) as Excise Assistant for a higher salary and all other benefits like free food, family medical, bonus, ex-gratia, scholarship for brotrhers and sisters, and self and for higher education, conveyance etc. This Defendant has undergone extensive training in this company relating to ISA 14001 and own several awards during his tenure in this company. When this defendant come down to the village in 1988 the thatched house situated in the plaint property was almost in collapsing state and the plaintiff and late mother Seethu Poojarthy were virtually weeping as they were unable to repair the same and requested this defendant to get it rebuilt immediately, or else they would go absolutely unsheltered. Having understood the pathetic situation in which his aged parents and family members were living, this defendant made up his mind to get the house re-constructed at the initial budget of Rs.60,000/-. This quotation was given to us one late Challa Ministry in the month of Nov-Dec.1988 and work has started somewhere in 1989 and entire new house was ready by end of 1990. As cost of construction exceeded to Rs.1,29,000/- this defendant constrained to invest the said amount inevitably by borrowing loans, loans from PF, sold his

equity shares of Colgate Palmolive, Ambuja Cement, J.B.Chemicals etc. etc. It is only this defendant who has invested entire cost of construction of the said house and no other members claiming to be the owners of this house. This defendant also provided them black and white Bharat TV and Telephone connection for them to lead a better life. On the contrary this Defendant claims rent from the Plaintiff and Defendant No.2, for their stay (Plaintiff, her elder son, his wife and two children and from 1995 onwards Defendant, his wife and two children) at this newly constructed house comfortable stay from 1991 till disposal of this suit. This defendant would not have sold the above equity shares till date, the appreciation would have been more (see given below statement):

Bathroom, Kitchen, four rooms, one hall and one varanda large, upstair large storeroom. The main construction details/activities carried out for this new house are as under: 1. 2. 3. 4. 5. 6. 7. 8. Labour charges (Mistry;s charges) Cooli Cost of materials, wood etc. Painting Main Gate Grills Electrification Miscellaneous expenses

During the course of construction, the Plaintiff has sought the help of following persons known to her and this Defendant. Name Jaya Poojari Mohamodali Jaganna Poojari Umesh Naik Rajaram Place Kallianpur Kallianpur Kallianpur Kallianpur Udipi Profession nil nil nil nil State Govt. Employee

Your Honour may call the above persons for their statements in respect to the source of money spent for construction of this house. This Defendant also bring to the notice of this Honble court that all the comforts / good deeds done by this Defendant for the betterment of his family members that is prior to his marriage as this defendant got married at Kallianpur in 25 th April 1991. In fact, the Plintiff and Defendant No.2 fully aware of the past pathetic condition of the family and how they came up only due to this defendants earning prior to his m arriage otherwise they would have remained as begger till date. This is who I made all the things for them. On the contrary they should be thankful to me for the comfort provided by this defendant because of his good job that is also after this defendant coming to Mumbai and remained as a bachelor for a long period. It is also stated here that Plaintiff and her younger son frequently visited this Defendant at Mumbai every year. This also bring to the notice of this Honble court that Plaintiff elder son was also an alholic and thief (can be ascertained from the neighbourhood) and Plaintiff use to look after her elder son who is jobless and his family members with her own salary. How Plainiff claims that she looked after parents, built house etc. etc. as if she is a top Govt. officials?

of the family had capacity to pay anything. The plaint property was also not deriving any income.

4. The elder brother one Kariyppa was working in Mumbai and he was living with his wife Smt.Bhageerathi and 2 minor daughters in a flat obtained on pagdi system at Santa Cruz (West). His younger brother Shekhar had shifted to Mumbai somewhere in the year 1967 and he never turned down to his native place thereafter. He was of a criminal nature and living like local goonda only. He was alcoholic and womanizer, always roaming with different girl friends and his life style was of just like a beast. The aforesaid brother Kariyppa died after 2 months after the death of his father. Bhageerathi came down to her parental house at Nidamballi of Udipi Taluka long with her minor children after the death of her husband Kariyppa and she also died with 3 months leaving the said minor children who were then aged about 4 and 3 years became orphans. After the occurrence of 3 deaths as aforesaid there has been absolutely difficult for their daily bread in the native house. This defendant used to send money also every month to his parental house till his mothers death for family maintenance. Taking advantage of the death of Kariyppa and his widow Bhagirathi soon the said Shekar had occupied their said flat at Mumbai forcibly and thereafter he surrendered vacant possession of the same to its owner

upon receiving an amount of Rs.50,00,000/- by way of compensation. The said amount was used for his own purposes. He died 2 years ago at Mumbai. 5. It is further submitted that this defendant took the 2 nd Defendant to Mumbai providing him shelter as well as food during 1984-1993. He also took plain6tiffs younger son Sunil to Mumbai and provided him education, food and shelter during 1985-2003. It is not correct to say that this defendant has already left for Mumbai decades ago and is permanently residing there with his family as contended in plaint para no.III (12). It is for employment sake this defendant is ordinarily residing at Mumbai. 6. The allegations made in plaint para no.III (3) is also not correct. It is submitted that as a responsible son this defendant was duty bound to look after his aged and infirm parents. He did it sincerely. Likewise out of affection upon his family members he strived hard in bringing up the members of the family including the plaintiff. Since the plaint property had been enjoyed all these days by the plaintiff as well as the 2 nd defendant only, no question of this defendant denying share in the property to the plaintiff and showing his unwillingness for portion would arise. 7. That no cause of action for the suit has arisen yet. Anyway this defendant has no objection for the plaintiff from taking her legitimate share in the plaint property in accordance with law, provided this defendant does get the present market value for the house standing thereon as the entire money has been invested by him alone for the construction plus his legitimate share in the landed property. Further the minor children of his brother Kariyappa are also entitled to have their legitimate share in the property. 8. That the suit is not properly valued for the purpose of Court fee and jurisdiction. The suit is silent regarding the improvement affected by late Appu Poojary. The suit schedule property is comprised of a 16 yielding coconut trees, 2 Jack trees, 2 mongo trees, well which would cost about Rs.30,000/-

9. That the description of the plaint is not correct. 10. That the LRs of Kariayapa are the necessary parties to this suit. In their absence the suit is bad for non-joinder of necessary parties. 11. The frame of the suit as brought is not correct. The plaintiff is not entitled to the relief claimed in the plaint.

12. Therefore the suit may be disposed of in accordance with law. Udipi

Advocate for 1st Defendant (K.Dayananda)

1st Defendant

I, the defendant No.1 above named do hereby declare that the facts stated above are all tr4ue to the best of my knowledge and belief.

Udipi

1st Defendant1

Re Deft.1

This is to bring to the notice of this Honble court that Defendant No.2 was staying with Defendant No.1 from 1984 to 1993 in Defendant no.1s owned one room kitchen house at Mumbai free of cost, as he was a driver for Excelite Insulations Pvt. Ltd. for a initial salary of Rs.500/- p.m. for 10 hrs work per day. In this meager salary he cannot maintain himself, how come he can able to look after the aged mother and contribute for construction of new house? He left the defendant No.1 house only after Defendant No.1 got married in 1991. Defendant No.1 was under Defendant No.1s mercy from 1984 to 1993. In the year 1994/95, Defendant No.2 resigned from his job, collected his PF amount and gratuity not exceeding Rs.40,000/- and got married at Kallianpur in 1995. After few months of his marriage, this Defendant was jobless and whatever money he has got over and he was in bad shape, and lately he got a job of driver at Udipi for a monthly salary of Rs.750/1000/- per month, with this small amount he
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cannot maintain himself, his wife and children and this defendant came to village, he was literally a begger and advised him to come to Mumbai for betterment but he refused to budge and this defendant repeatedly called him over the phone to come back to Mumbai for bettrerment but still he did not listen to this defendant. Seeking his patching condition, this defendant encouraged him to buy a second hand four wheeler sensing that he may work hard by helping him Rs.5000/- and this defendant requested plaintiff to give him Rs.5000/- and remaing amount he can take mortgage loan from Banks. On request of this defendant, the Plaintiff signed as a guarantor for Defendant No.2s bank garantors. After a month or so, Defendant No.1 started driking heavily regularly and started shouting at night to aged mother and Plaintiff under the influence of alcohol and two/three occasions he drove away the aged mother out of the house and she was missing for few days. Defendant No.2 made the senior citizens life miserable during night for a long period, truth can be ascertained from the neighbourhood. Plaintiff has made police complaint this respect monier times. This practice was regularly going on during night time till last day of mothers death. As the mother was not looked after well by Defendant No.2 and his family as the money orders sent by this defendant was spent by Defendant No.2, and his family members. In view of this, this defendant stopped sending them money orders instead I started sending to Plaintiff for the deceased mother. On this account, defendant No.2 started harassing Plaintitf during night under the influence of alcohol and sold gold bangles and chain of deceased mother for the purpose of alcohol. Defendant No.2 was mainly concerned with money. Whenever questioned, he says there is no income coming from four wheeler and till date he has not repaid the amount given to him by this Defendant and Plaintiff. It is noticed that whatever the earning coming from the vehicle, he spent for his drink and other personal expenses. This Honable court may be requested to question the Defendant No.2 regarding the above statement made by this Defendant.

This also bring to the notice of this Honble court that 2nd son of Plaintiff was called to Mumbai in the year 1985 by Defendant No.1 for better future as soon as he completed his 2 years Vocational Diploma Course. The Plaintiffs 2nd son was given extensive training at Davers Colleage during 1985/1986 by Defendant No.1 and he was working for small organizations with frequent ups and downs and all the facilities have been provided to him by this Defendant no.1 such as free accommodation, food, medical help etc. from 1985 to 2003 and only after 2003, he made his own house with the help provided by Defndant No.1 and started staying separately with his family. This son of Plaintiff was also under the mercy from 1985 to 2003 of Defendant No.1. How come Plaintiff is claiming to be looked after parents and constructed new house with her starting meager salary of Rs.100/- p.m. getting from Anganwadi schools without any educational qualifications?