Bangalore District Court
Mrs. Mary Magdaleen J vs Mrs. Cecilia J on 28 September, 2021
IN THE COURT OF THE LXXIV ADDL. CITY CIVIL AND
SESSIONS JUDGE MAYOHALL UNIT, BENGALURU
(CCH-75)
Dated this 28th Day of September 2021
PRESENT:
SRI. MOHAMMED MUJEER ULLA C.G.B.A. LL.B.,
LXXIV Addl. City Civil and Sessions Judge, Bengaluru.
ORIGINAL SUIT NO. 26513/2011
PLAINTIFF: Mrs. Mary Magdaleen J.,
Aged about 51years
W/o Mr. A. Joseph Rayan,
R/at: No.120, 5th cross,
Pillanna Garden,
St. Thomos Town Post,
Bengaluru - 560084.
(REP BY: SRI.M.P.Manjunath- ADVOCATE)
V/s
DEFENDANT: Mrs. Cecilia J.,
Aged about 50 years
W/o Mr. Joseph Suigirthraj L.,
R/a # 10, Venkatapuram Layout,
Post Office Road,
Maruthi Seva Nagar
Bangalore-560 045.
(REP BY: SRI.H.B.Uday Kumar - ADVOCATE)
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O.S.No. 26513/2011
Date of Institution of the suit 27/08/2011
Nature of the Suit (Suit on pro-note, suit for
declaration and possession, suit for DECLARATION & INJUNCTION
injunction, etc.)
Date of the commencement of recording of
30/09/2015
the Evidence.
Date of pronouncement of Judgment 15/09/2021
Total duration Year/s Month/s Day/s
10 00 08
JUDGMENT
Plaintiff has filed the instant suit for cancellation of Gift deed dated: 16.08.2008 made in respect of B schedule property in favour of defendant and permanent injunction restraining the defendant from interferfering with plaintiff's possession and enjoyment of the suit 'B' schedule property and/or taking forcible possession of the said property and costs.
FACTS OF THE CASE:
2. Plaintiff and defendant are direct sisters. The suit A schedule property originally belonged to their 3 O.S.No. 26513/2011 mother late Emily Theresa Arpudam. She acquired the said property under the registered sale deed dated:
09.07.1975. After purchase of the suit 'A' schedule property, she constructed a residential house therein. On 13.09.1998 she died intestate leaving behind 5 children including plaintiff and defendant to succeed her estate.
The father of plaintiff and defendant died on 17.11.2002. Plaintiff contends that her mother late Emily Theresa Arpudam during her life-time was stating that after her death, the suit 'A' schedule property shall go to her 1 st daughter, the plaintiff. Therefore, after the death of Mrs. Emily Theresa Arpudam all her children including defendant executed a release deed dated: 12.10.2006 releasing their interest in suit schedule A property in her (plaintiff) favour. She contends that some days after execution of release deed, her sister, the defendant started pressurising her and putting threats to execute gift deed in respect of ½ portion of suit A schedule property. Defendant and her family members brought 4 O.S.No. 26513/2011 rowdy elements and by putting threats on her and her family members got the gift deed dated: 16.08.2008 in her favour in respect of ½ portion of suit 'A' schedule property which is morefully described in the schedule 'B' and hereinafter referred to as schedule 'B' property. Plaintiff contends that she did not execute the above gift deed out of her free Will and volition. She also not handed over the possession of suit 'B' schedule property to the defendant. Therefore, the above Gift deed made by putting threats and undue influence on her and also her family members is not valid and binding on her. Plaintiff contends that she requested the defendant to cancel the above said gift deed. Defendant on one or the other pretexts avoided to execute the Deed of Cancellation. On the basis of the said illegal Gift Deed, defendant got entered her name in the BBMP records of suit 'A' schedule property and on the basis of the said illegal documents, she is trying to interfere with her possession and enjoyment of suit 'B' schedule property. 5
O.S.No. 26513/2011 Therefore, she has filed the instant suit for the releif of cancellation of Gift Deed and perpetual prohibitory injunction restraining the defendant from interfering with her possession and enjoyment of the suit 'B' schedule property and/or taking forcible possession of the said property. On these and other grounds stated in the plaint, plaintiff prays to grant the relief of declaration, and perpetual prohibitory injunctions.
3. Defendant resisted the suit by filing written statement. She admitted that plaintiff is her elder sister; the suit 'A'schedule property belonged to her mother late Emily Theresa Arpudam; she purchased the said property under the registered sale deed dated:
9.07.1975; after purchase, she constructed RCC building approximately measuring 500 Sq.ft; she died intestate on 13.09.1998; her husband Mr. G.N. Jaipal Rao died on 17.11.2002; after their death, release deed dated:
12.10.2006 was made in favour of plaintiff in respect of suit 'A' schedule property. Defendant denied that her 6 O.S.No. 26513/2011 mother Emily Theresa Arpudam during her life-time was stating that she had an intention to give the suit 'A' schedule property to the plaintiff, therefore, as per the wish of her mother, she and her siblings executed release deed dated: 12.10.2006 in favour of plaintiff.
She contends that the above release deed was made in favour of plaintiff with an understanding that after executing the said release deed, plaintiff has to execute Gift Deed of suit 'B' schedule property in her favour. In the same way, she, plaintiff and their sisters executed another release deed in favour of their brother Clement Gerard in respect of property left behind by their father with an understanding that he has to execute Gift Deed of half of the said property in favour of his sister Tony Delphina Valentine. As per the said mutual understanding her brother Clement Gerard executed Gift Deed in respect of half portion of his father's property in favour of his sister Tony Delphine Valantile. The plaintiff expressed her willingness to purchase ½ portion 7 O.S.No. 26513/2011 of suit 'A' schedule property for a sum of Rs.6,00,000/-. She did not accept the said offer. Therefore, as per the advice of her siblings and in accordance with the mutual understanding between them at the time of making release deed dated: 12.10.2006 plaintiff voluntarily executed the Gift Deed dated: 16.08.2008 in respect of suit 'B' schedule property in her favour and put her in possession of the said property. Plaintiff's son is also witness to the said Gift Deed. As per the said Gift Deed, katha of the suit 'B' schedule property was got mutated in her name and she has been paying tax to BBMP. Defendant denied that she got the above Gift Deed by threatening the plaintiff or by undue influence. The above said Gift Deed was made by plaintiff out of her free Will and volition. On the date of execution of Gift Deed, plaintiff also executed a declaration stating that a portion of 'B' schedule property upon which the structure is existing which is the part of the building constructed by her mother in occupation of plaintiff is to be handed 8 O.S.No. 26513/2011 over to her within one year. Therefore, the contention of plaintiff that the above said Gift Deed was made by putting undue influence and threats on her is false and a created story. On these and other grounds stated in the written statement, defendant prays to dismiss the suit.
4. On the basis of the aforesaid pleadings, on 28/06/2013 the then presiding officer has formulated the following Issues.
1. Whether the plaintiff proves that under the threat and undue influence of defendant and her family members she executed a gift deed dt: 16.08.2008 in favour of the defendant which is liable to be cancelled?
2. Whether the plaintiff is entitle for permanent injunction?
3. Whether the defendant proves that the suit is not valued properly and court fee paid in sufficient?
4. Whether the suit is hit by non-
joinder and mis-joinder of
necessary parties?
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O.S.No. 26513/2011
5. What order or decree?
5. The attorney holder of plaintiff was examined as PW1 and son of plaintiff examined as PW.2 and they produced documents marked at Ex.P.1 to P.62. Defendant was examined as DW1 and one witness by name Clement Gerard examined as DW2. Defendant produced documents marked at Ex.D.1 to D.16.
6. Heard the arguments on both side and perused record. Counsel on both side submitted written arguments with rulings.
7. My findings on the above issues are as under:
Issue No.1: In the Negative.
Issue No.2: In the Negative.
Issue No.3: Does not survive for
consideration.
Issue No.4: In the Negative.
Issue No.5: As per the final order
for the following:
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O.S.No. 26513/2011
REASONS
8. ISSUE NO.1: In the instant case, there is no
dispute that suit 'A' schedule property formerly belonged to Smt. Emily Theresa Arpudam, the mother of plaintiff and defendant; she acquired the said property under Ex.P. 1 registered sale deed dated: 09.07.1975; she died intestate on 13.09.1998; her husband A. Joseph Rayan died intestate on 17.11.2002; after their death, defendant and her siblings executed Ex.P. 3 release deed dated:
12.10.2006 in respect of the suit 'A' schedule property in favour of plaintiff.
9. Plaintiff contends that after execution of Ex.P. 3 release deed, defendant by putting pressure and threats on her and her family members and also by undue influence got Ex.D. 2 Gift Deed dated: 16.08.2008 in respect of suit 'B' schedule property ie., ½ portion of suit 'A' schedule property . To substantiate her contention, plaintiff has not entered into witness box. She examined 11 O.S.No. 26513/2011 her husband A.Joseph(PW.1) as her attorney holder and her son Arvind Christopher as PW.2.
10. The Ld. Counsel for the plaintiff in support of his arguments that PW.1 A. Joseph, the husband of plaintiff is competent to depose on behalf of plaintiff as her attorney holder has placed reliance on the following judgments.
1. ILR 2010 KAR 3774( S.V.Revanaradhya Vs Sri. Jagadish Mallikarjunaiah Chakrabhavi)
2. AIR 2006 KAR 231( Bhimappa and Ors Vs Allisab & Ors)
3. 2007(5) AIR Kar R 495(Yellappa Vs Smt. Yellamma & Ors)
4. 2005(4) KCCR 2430(Kaju Devi & Anr. Vs H.S.Rudrappa @ Rudy & Others)
5. 2014(1) KCCR 396( R. Narasimha Vs S.P.Sridhar)
6. AIR 2002 NOC 177(KANT)(Smt. Rajamma Vs S. Narayana Rao) 12 O.S.No. 26513/2011
11. I went through the above cited judgments. In the said judgments, it has been consistently held that an attorney holder is a competent witness and he can depose about the facts which are within his personal knowledge. Keeping in view the ratio laid down in the above cited judgments, let us consider the evidence of PW.1, A Joseph, the attorney holder and the husband of plaintiff.
12. PW.1 in his examination in chief has reiterated and re-affirmed the plaint averments. He produced Ex.P. 1, certified copy of sale deed dt: 08.07.1975, Ex.P. 2 Rectification Deed dated: 08-07-1978, Ex.P. 3 Release deed dated: 12.10.2006, Ex.P. 4 Khatha certificate, Ex.P. 5 Utar, Ex.P. 6 to 10 Tax paid receipts, Ex.P. 11Memo dated: 25-
05-1960 issued by CITB, Ex.P. 12 Death certificate of Emily Theresa Arpudam, Ex.P. 13 to 17 Encumbrance certificates((1to5), Ex.P. 18 to 31 Electricity demand bills & receipts (1to 14), Ex.P. 32 to 44Water bills and receipts(1to
13)to 44 , Ex.P. 47 certified copy of sale deed dated: 13
O.S.No. 26513/2011 30.12.1981, Ex.P. 48 certified copy of rectification deed dt:4.3.1988, Ex.P. 49 certified copy of sale deed dt:
12.08.2005, Ex.P. 50 agreement for permanent power supply, Ex.P. 51 Indemnity bond, Ex.P. 53 payment receipt, Ex.P. 54 property tax receipt,exp 55 affidavit of family tree, Ex.P. 56 property tax receipt, Ex.P. 57 sanctioned plan and Ex.P. 58, Form-A, Ex.P. 61 2 medical records and Ex.P. 62 Plan.
13. Defendant has not disputed the above documents. As I have already stated above, in the instant case, there is no dispute that the mother of plaintiff and defendant purchased suit 'A' schedule property , after her death release deed of suit 'A schedule property was executed by defendant and her siblings in favour of plaintiff and on the basis of the said release deed, khata of suit 'A' schedule property was effected in the name of plaintiff. Therefore, the above undisputed documents are of no assistance to plaintiff to prove her contention that defendant and her family members 14 O.S.No. 26513/2011 created Ex.D. 2 Gift Deed by taking her signatures by force, by putting threat on her and her son and by undue influence. The said contention of the plaintiff is to be proved by leading oral evidence.
14. In para No.6 of the examination in chief,PW.1 has baldly stated that due to threats and undue influence of defendant and her family members, plaintiff executed Ex.D. 2 Gift deed dated: 16.08.2008 in favour of defendant in respect of suit 'B' schedule property. He stated that despite the Gift Deed was executed, plaintiff is in possession of the entire suit 'A' schedule property.
PW.1 in the examination in chief has not stated on which date and at which place, defendant and her family members put threats on plaintiff to execute Ex.D. 2 Gift Deed. He also not stated who were present at the time of putting the alleged threats by defendant and her family members on plaintiff to execute the said Gift Deed. PW.1 has not explained any acts or circumstances under which 15 O.S.No. 26513/2011 defendant unduly influenced the plaintiff to execute Ex.D.2 Gift Deed in her favour.
15. PW.2 Arvind Christopher, son of plaintiff in para No.3 of his examination in chief, has baldly stated that due to the threat and undue influence of defendant and her family members, his mother, the plaintiff executed Ex.D. 2 Gift Deed in favour of defendant in respect of suit 'B' schedule property. In para No.5 of his examination in chief, he stated that on 16.08.2008 defendant called plaintiff and informed her to come to her house for lunch. Accordingly, he and his mother, the plaintiff went to defendant's house. Defendant, her family members, Clement Gerard, the brother of plaintiff and defendant and some unknown persons were there in defendant's house. In the discussion, defendant demanded plaintiff to give 50% of suit 'A' schedule property to her. When the plaintiff refused, her brother Clement Gerard and some unknown persons who were there in the defendant's house threatened the plaintiff by 16 O.S.No. 26513/2011 stating that if she do not give 50% of suit 'A' schedule property to defendant, they will not leave her and would kill her. In para No.6 of the examination in chief, PW.2 has stated that defendant and others illegally confined him in the defendant's house and took his mother, the plaintiff outside. At 6.00PM his mother, the plaintiff, defendant and others returned to defendant's house. His mother told him that defendant by putting threats on her, took her to the office and taken her signatures on some documents. In para No.7 of the examination in chief, PW.2 has stated that on that day in the evening, he and his mother, the plaintiff informed everything to PW.1. On the next day, complaint was given to K.G.Halli Police station against defendant, her brother Clement Gerard and others. The police advised the plaintiff to file civil suit. In para No.8 of the examination-in-chief, PW.2 has stated that a week after giving complaint to Police, panchayath was convened to resolve the dispute. In the Panchayath, the family members advised defendant to 17 O.S.No. 26513/2011 execute a deed of cancellation of Gift Deed. As per the advice given by panchayathdars, defendant and her family members did not execute Deed of Cancellation of Gift Deed dated: 16.08.2008 and to avoid the execution of the said deed, they went to Mumbai. Defendant's brother Clement Gerard given assurance to plaintiff that defendant will come in the month of June and obey the instruction given by Panchayathdars. Therefore, plaintiff waited for a considerable time. Defendant did not come forward to execute deed of cancellation of Gift Deed dated: 16.08.2008. Therefore, the instant suit is filed.
16. Defendant Cicilia J who was examined as DW.1 in her examination-in-chief has reiterated and re- affirmed the facts stated in the written statement. She examined her brother Clement Gerard as DW.2. DWs1 and 2 have stated that their parents were having 3 properties. Their mother Emily Theresa Arpudam during her life-time has sold one property. After the death of their parents, they and their siblings had a discussion 18 O.S.No. 26513/2011 regarding partition of 2 properties left behind by their parents. Their sister Jayanthi Juliana who is well settled has stated that she will not take share in the properties left behind their parents. Therefore, they, plaintiff and another sister by name Tony Delphina entered into an understanding that the release deed of suit 'A' schedule property is to be executed in the name of plaintiff and the release deed of property belonged to their father is to be made in the name of DW.2 Clement Gerard. Thereafter, DW.2 has to execute Gift Deed of ½ portion of the said property in favour of his sister Tony Delphina and plaintiff has to execute Gift Deed of ½ portion of suit 'A' schedule property in favour of defendant. Dws 1 and 2 have stated that as per the said understanding, on 12.10.2006 they and their sisters executed Ex.P. 3 release deed in respect of suit 'A' schedule property in favour of plaintiff and on the same day, plaintiff, defendant and other sisters executed Ex.D.15 release deed in favour of DW.2 in respect of property belonged 19 O.S.No. 26513/2011 to their father situate in Lingaramapuram, Bengaluru. DWs1 and 2 have stated that as per the said mutual understanding, on 17.12.2007 DW.2 executed Ex.D. 16 Gift Deed and given ½ of the property situate in Lingarajapuram, Bengaluru to his sister Tony Delphina and in the same way, plaintiff executed Ex.D.2 Gift Deed in favour of defendant and given half of the suit 'A' schedule property to her. DWs1 and 2 have stated that their siblings and family members are witnesses to Ex.D. 2 and Ex.D. 16 Gift Deeds made as per understanding between them and their siblings regarding effecting partition of properties left behind by their parents. They stated that though plaintiff voluntarily executed Ex.D. 2 Gift Deed in favour of defendant as per the understanding between them she filed the instant suit to harass and humiliate defendant by making false allegations against them that by putting threats and undue influence, they got signatures of plaintiff and created the said Gift Deed.
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17. In the instant case, plaintiff and defendant both have filed written arguments and submitted rulings in support of their respective contentions. I will refer their submissions contextually. Plaintiff filed the instant suit for cancellation of Ex.D. 2 Gift Deed executed by her in favour of her own sister, the defendant by contending that defendant and her family members by putting threat and undue influence took her signature and created the said Gift Deed. The plaint and Verification affidavit were signed by plaintiff. For the reasons best known she did not enter into witness box. In the plaint, except baldly stating that defendant and her family members by putting threats and undue influence took the signatures of plaintiff by force and created Ex.D. 2 Gift Deed has not stated who were present at the time of making the said Gift Deed. In para No.6 of the plaint, plaintiff has stated that on the date of making Ex.D. 2 Gift Deed, defendant by putting force on her taken her signatures and created a declaration stating that she has symbolically given the 21 O.S.No. 26513/2011 possession of suit B schedule property to defendant. In the same para, plaintiff has stated that defendant with the help of rowdy elements, threatened her and her family members namely her husband and son and took their signatures as witnesses to Ex.D. 2 Gift Deed and Ex.D. 3 declaration. Thus, a careful reading of para No.6 of the plaint would give an indication that plaintiff admitted her signatures and the signatures of her husband, PW.1 A.Joseph Rayan on Ex.D. 3, Declaration and her signatures and the signature of her son PW.2 Arvind Christopher on Ex.D. 2 Gift Deed and the presence of her husband, PW.1 A Joseph Rayan and her son P.W.2 Arvind Christopher at the time of making Ex.D. 2 Gift Deed and Ex.D. 3 declaration.
18. Plaintiff by admitting the presence of her husband and son at the time of making Ex.D. 2 Gift Deed and Ex.D. 3 declaration has contended that defendant and her family members took their signatures by 22 O.S.No. 26513/2011 threatening them with the help of anti-social elements and also by undue influence.
19. The word undue influence is defined in section 16 of the Indian Contract Act and it reads thus:
16. 'Undue influence' defined.--
(1) A contract is said to be induced by 'undue influence' where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. 1[16. 'Undue influence' defined.--(1) A contract is said to be induced by 'undue influence' where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other."
20. Having regard to the allegations made by plaintiff against defendant and her family members, plaintiff is the important witness to prove the said allegations. PW.1 in the cross-examination has stated that his wife, the plaintiff is a Teacher and she studied upto II year P.U.C. Plaintiff being an educated person having worldly knowledge for the reasons best known has not entered into witness box to prove the allegations 23 O.S.No. 26513/2011 made by her against her own sister and her family members. Defendant placed reliance on the judgment of Honble Supreme Court of India in the case of Janaki Vasudev Bhojwani and others Vrs Indus land Bank Ltd., and others. In the said case, placing reliance on judgment of Honble Supreme Court of India in the case of Vidyadhar Vs Manik Rao and Another reported in (1999)3 SCC 573 it has been reiterated that where the party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set-up by him is not correct. Further in the said judgment, it has been held that a party to the suit cannot execute power of attorney authorising his agent to give evidence on his behalf. The agent of a party to the suit can give evidence only in respect of facts which are within his personal knowledge. Let us consider whether PW.1, the attorney 24 O.S.No. 26513/2011 holder of plaintiff having personal knowledge about the dispute in controversy.
21. PW.1 in the examination-in-chief has not stated that at the time of making Ex.D. 2 Gift Deed and Ex.D. declaration, he was present. PW.2 Arvind Christopher, son of plaintiff in para No.7 of his examination-in-chief has stated that on the day of execution of Ex.D. 2 Gift Deed in the evening, he and his mother, the plaintiff informed PW.1 A. Joseph Rayan about circumstances under which plaintiff put her signatures on Ex.D. 2 Gift Deed. The said statement of PW.2 on oath would give an indication that PW.1 is not having personal knowledge about alleged threats and undue influence by defendant and her family members on plaintiff to get Ex.D. 2 Gift Deed and Ex.D. 3 declaration.
22. PW.2 in his examination-in-chief in para No.5 and 6 has stated that after he and his mother went to defendant's house for lunch, defendant by using rowdy elements illegally confined him in her house and took his 25 O.S.No. 26513/2011 mother, the plaintiff outside and at 6.00pm her mother came to the defendant's house along with defendant and others and told him that defendant with the help of rowdy elements took her to some office and taken her signatures and also her photo to make a document and she put the signatures without reading the contents of the documents. Thus, according to PW.2, he was also not present when Ex.D. 2 Gift Deed and Ex.D. 3 declaration were made. Therefore, as per his statement, he was also no personal knowledge regarding execution of Ex.D. 2 Gift Deed and Ex.D. 3 Declaration.
23. In para No.6 of the plaint, plaintiff has stated that defendant and her family members by threatening her and her husband and son took their signatures on Ex.D. 2 Gift Deed and Ex.D. 3 Declaration. The statements of PWs1 and 2 on oath that they were not present at the time of making Ex.D. 2 Gift Deed and Ex.D. 3 declaration and PW.1 not signed on Ex.D. 3 declaration and PW.2 not signed on Ex.D.2 Gift Deed are contrary to 26 O.S.No. 26513/2011 the pleadings made by plaintiff in para No.6 of the plaint. Therefore, the facts stated by PWs1 and 2 in variance of pleadings are not helpful to plaintiff to prove her contention that defendant and her family members by putting threats and by undue influence took signatures of herself and her son PW.2 Arvind Christopher on Ex.D.2 Gift Deed and her signature and signature of her husband PW.1 A. Joseph Rayan on Ex.D. 3 declaration by putting threats on them and also by undue influence.
24. In the written arguments submitted by plaintiff, it is stated that 2 years after registration of Ex.P. 3 release deed, defendant and her brother Clement Gerard came to plaintiff's house and threatened her and her family members to give ½ of the suit 'A' schedule property to defendant by making a Gift Deed. Plaintiff did not agree to give ½ of the suit 'A' schedule property to defendant. Thereafter, defendant and her brother Clement Gerard hatched a conspiracy and on 16.08.2008 defendant invited plaintiff and her son for lunch. When 27 O.S.No. 26513/2011 the plaintiff and her son went to defendant's house, she, her husband and brother with the help of anti-social elements threatened plaintiff and her son, wrongfully confined plaintiff's son Arvind Christopher in defendant's house and forcibly took the plaintiff to Sub-Registrar Office, took her signatures by force and undue influence and created Ex.D. 2 Gift Deed and Ex.D. 3 declaration regarding handing over possession suit 'B' schedule property to defendant. Further it is stated that on 16.08.2008 PW.1 A. Joseph Rayan was on duty at B.E.L. Bengaluru. Therefore, he did not sign on Ex.D. 3 Declaration and his son PW.2 Arvind Christopher not signed on Ex.D. 2 Gift Deed. It is stated that Ex.D. 2 Gift Deed was created by forging the signature of PW.2 Arvind Christopher and Ex.D. 3 Declaration was created by forging the signature of PW.1 A. Joseph Rayan. Further it is stated that the plaintiff has lodged a complaint against defendant and others to the SHO of K.G.Halli Police station.
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25. In para No.8 of the plaint, plaintiff has stated that after making of Ex.D. 2 Gift Deed and Ex.D. 3 Declaration, panchayath was convened. In the panchayath, family members, elders and well-wishers requested the plaintiff not to give complaint against defendant and her family members. Therefore, as per the advice of panchayathdars and in order to protect the family status, plaintiff did not give complaint to the police. Contrary to the averments of the plaint, PW.2 Arvind Christopher in para No.7 of his examination-in-chief has stated that on the next day of registration of Ex.D. 2 Gift Deed and Ex.D. 3 Declaration, complaint was given to K.G.Halli Police station against defendant and her agents. The Police called defendant to the police station. But, they did not take any action against her and advised the plaintiff to approach Civil Court. Thus, the facts stated by PW.2 in para No.7 of the examination-in-chief are contrary to the facts stated in para No.8 of the plaint. 29
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26. Plaintiff, her husband PW.1 A. Joseph and son PW.2 Arvind Christopher are educated persons having worldly knowledge. Taking signatures of a teacher by threatening her and her family members to make a Gift Deed of a valuable property is not a simple or casual matter. It is an offence. No prudent man would take such an incident lightly. Plaintiff contends that in view of elders and well-wishers advised her not to give complaint to the police against defendant and her family members, she did not give complaint against them but, PW.2 has stated that on the next day of registration of Ex.D. 2 Gift Deed, complaint was given against defendant and her family members. Plaintiff has not produced the copy of the complaint alleged to have been given against defendant regarding creation of Ex.D. 2 Gift Deed and Ex.D. 3 declaration. Ex.P. 59 is the endorsement issued by K.G.Halli Police Station. In Ex.P. 59 endorsement it is stated that plaintiff has given requisition to Dy.SP, Bengaluru East regarding proceedings of Crl.Misc. 30
O.S.No. 26513/2011 No.285/2011. The said requisition was given in the year 2016. The Police issued Ex.P. 59 endorsement stating that the records of Crl.Misc. Registered in the year 1986 to 2013 were destroyed in the month of March-2016. Therefore, the recitals of Ex.P. 59 endorsement would not support the statement of PW.2 Arvind Christopher that on the next day of registration of Ex.D. 2 Gift Deed, police complaint was given against defendant alleging that she created Ex.D. 2 Gift Deed by taking the signatures of plaintiff by undue influence and by putting threats with the help of rowdy elements.
27. In para No.8 of the plaint, plaintiff has stated that in view of the advice of elders, well-wishers and family members, she did not give complaint to the police against defendant. In the plaint, it is not stated when the said alleged panchayath was took place and who participated in the said panchayath. PWs1 and 2 in their evidence, have also not stated when the said panchayath was convened, who participated in it and 31 O.S.No. 26513/2011 what advice was given to litigating parties viz., plaintiff and defendant. Plaintiff has also not examined the alleged family members, elders and well-wishers, who alleged to have participated in the panchayath. Thus, absolutely there is zero evidence to prove settlement before the elders, family members and well-wishers of plaintiff and defendant as alleged in para No.8 of the plaint.
28. The Ld. Counsel for the plaintiff placing reliance on Ex.P. 46 attendance certificate has strenuously contended that on 16.08.2008 PW.1 was on duty, therefore, the contention of defendant that on 16.08.2008 he signed on Ex.D. 3 declaration as witness cannot be accepted. A perusal of Ex.P. 46 attendance certificate would show that on 16.08.2008 PW.1 was on duty in the 1st shift, commencing from 6.30am to 2.30pm. Ex.D. 2 gift deed was registered on 16.08.2008 at 3-04pm. After making Ex.D. 2 Gift Deed, Ex.D. 3 declaration was made. Therefore, Ex.D. 46 attendance certificate is of no 32 O.S.No. 26513/2011 assistance to PWs1 and 2 to prove that at the time of making Ex.D. 3 declaration PW.1 was on duty at BEL.
29. PWs1 and 2 have denied their signatures on Ex.D. 3 declaration and Ex.D. 2 Gift Deed respectively. They contend that defendant created Ex.D. 2 and 3 by forging their signatures. Dws 1 and 2 who were present at the time of making Ex.D. 2 and 3 have stated that in their presence plaintiff and PW.2 put their signatures on Ex.D. 2 Gift Deed and plaintiff and her husband PW.1 put her signatures on Ex.D. 3 declaration. In the cross- examination of PWs1 and 2 except making suggestion that Ex.D. 2 Gift Deed was created by forging the signature of PW.2 and Ex.D. 3 declaration was created by forging the signature of PW.1 which was denied by them. nothing worthwhile was elicited to disbelieve their testimony that in their presence P.1 put signature on Ex.D. 3 declaration and PW.2 put signature on Ex.D. 2 Gift Deed.
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30. In the instant cases, plaintiff has not taken steps for appointment of hand-writing expert to prove that the signatures on Ex.D. 2 Gift Deed as witness No.1 is not the signature of PW.2 and the signature on Ex.D. 3 declaration as witness No.1 is not the signature of PW.1. When such is the case, the court has no option except to compare the admitted signatures of PWs1 and 2 on their deposition with disputed signatures on Ex.D. 2 and Ex.D.3. On bare comparison of admitted and disputed signatures of PWs1 and 2 with naked eyes and having regard to the style, stroke and basic characters in their signatures, the court is of the opinion that the admitted and disputed signatures were made by same persons. In addition to that, the averments made by plaintiff in para No.6 of the plaint that defendant and her family members by putting threats took her signatures and signatures of her son and husband as witness to Ex.D. 2 Gift Deed and Ex.D. 3 declaration would support the testimony of DWs1 and 2 that PW.1 has put his 34 O.S.No. 26513/2011 signature on Ex.D. 3 declaration as witness and PW.2 put his signature as witness No.1 to Ex.D. 2 Gift Deed. Therefore, the statement of PWs1 and 2 that Ex.D. 2 Gift Deed was crated by forging the signature of PW.2 and Ex.D. 3 declaration was created by forging the signature of PW.1 cannot be accepted.
31. The Ld. Cousnel for the plaintiff has strenuously contended that Ex.P. 1 release deed is silent regarding execution of Gift Deed in respect of suit 'B' schedule property in favour of 1 st defendant. Therefore, the contention of defendant that Ex.P.1 Release Deed was made with an understanding that plaintiff has to execute Gift Deed of half of the suit 'A' schedule property ie., suit suit 'B' schedule property in favour of defendant cannot be accepted.
32. Dws 1 and 2 have stated that at the time of making Ex.P. 1 and Ex.D. 15 release deeds in favour of plaintiff and DW2 there was an understanding between them and their siblings that plaintiff has to execute Gift 35 O.S.No. 26513/2011 Deed of half of the suit 'A' schedule property in favour of defendant and DW.2 has to give half of the property given to him under Ex.D. 15 release deed to his sister Tony Dalphina Valentine by making Gift Deed. The said understanding is an oral understanding. In Ex.D. 3 declaration plaintiff has admitted that she executed Ex.D.2 Gift Deed as per the understanding between siblings in respect of properties left behind by their parents. Dws 1 and 2 have stated that as per the said understanding DW.2 executed Ex.D. 16 Gift Deed in favour of his sister Tony Dalphina Valentine in respect of half of the property of his father situate at Lingarajapuram, Bengaluru. PW.1 in the cross- examination at page No.15 has stated that he has no knowledge about Ex.D. 15 release deed and Ex.D. 16 Gift Deed. But, he has not denied the said Deeds. A perusal of Ex.D. 15 release deed would show that PW.1 is the witness to the said deed and a perusal of Ex.D. 16 Gift Deed would show that plaintiff is witness to the said 36 O.S.No. 26513/2011 deed. Therefore, it appears that plaintiff to avoid cross- examination regarding all the documents took place between her and her siblings in respect of the properties left behind by their parents has not entered into the witness box. Thus the evidence on record would support the testimony of DW1 and 2 that as per oral understanding between them and their siblings regarding partition of properties of their parents plaintiff executed Ex.D. 2 Gift Deed in favour of defendant.
33. The facts stated by PW.1 in the cross-
examination particularly regarding the signature of plaintiff and PW.2 on Ex.D. 2 Gift Deed, his signature and the signature of his wife, plaintiff on Ex.D. 3 declaration are contrary to the averments of para No.6 of the plaint. PW.1 in the cross-examination on so many aspects has stated that he has no knowledge about the said facts. But, a perusal of documents available on record would show that he is a witness to most of the documents made in respect of properties left behind by 37 O.S.No. 26513/2011 the parents of plaintiff and defendant. Thus, on threadbare evaluation of facts stated by PW.1 would show that he has not stated true facts before the Court. Therefore, his testimony would not inspire confidence of the court. In addition to that in view of his statement that at the time of making Ex.D. 2 Gift Deed he was not present , he is not proper person to say that the said Gift Deed was created by taking signature of his wife, the plaintiff by force and undue influence.
34. PW.2 Arvind Christopher, the son of plaintiff has stated that he was not present at the time of making Ex.D. 2 Gift Deed, though he signed on Ex.D. 2 Gift Deed, which was admitted by plaintiff in para No.6 of the plaint. PW.2 has denied his signature on the said Gift Deed. Therefore, the facts stated by PW.2 is also contrary to the averments of the plaint. In view of the statement of PW.2 that he was not present at the time of making Ex.D. 2 Gift Deed, he is also not competent to say whether his mother put signature to Ex.D. 2 Gift Deed 38 O.S.No. 26513/2011 voluntarily or by force or undue influence. In view of the above, I hold that the evidence of PW.2 would not help the plaintiff to prove her contention that defendant created Ex.D. 2 Gift Deed by taking her signature and the signature of her son by force and undue influence. In view of the above, I hold that plaintiff failed to prove that the defendant and her family members created Ex.D. 2 Gift Deed by taking her signature and the signature of her son PW.2 Arvind Christopher by force and undue influence, therefore, the said Gift Deed is liable to be cancelled.
35. The Ld. Counsel for the plaintiff placed reliance on the judgment of Hon'ble High Court of Karnataka in the case of B.C.Ravindra and another Vs Deviramma reported in 2010(3) KCCR 1638. In the said judgment, it has been held that if the Gift Deed is made by playing fraud, the fraud vitiates everything and therefore, the Gift Deed become void and there is no necessity to seek the relief of cancellation and seeking the relief of declaration 39 O.S.No. 26513/2011 is sufficient. IN the instant case, it is not the contention of plaintiff that Ex.D. 2 Gift Deed was made by playing fraud. Therefore, the above cited judgment is not applicable to the case on hand. In view of my findings that plaintiff failed to prove that defendant created Ex.D. 2 Gift Deed by taking her and her son's signatures by force, threats and undue influence, plaintiff is not entitled for the relief of cancellation of Gift Deed on the ground. In view of the above I answer Issue No.1 in the Negative.
36. ISSUE NO.3:- In respect of payment of court fee, plaintiff has placed reliance on the judgment of Hon'ble High Court of Karnataka in WP No.10742/2018( Venkatesh S Vs The State of Karnataka) In the said judgment it has been held that for cancellation of Gift Deed the court fee is to be paid u/s.38 of Karnataka Court Fee & Suit Valuation Act on the basis of value of the property mentioned in the Gift Deed. A perusal of valuation slip would show that plaintiff though seeking the relief of cancellation of Gift Deed dated: 16.08.2008, 40 O.S.No. 26513/2011 she did not pay proper court fee by making valuation u/s.38 of Karnataka Court Fee & Suit Valuation Act . As per the order dated: 15.09.2021, she paid additional court fee of Rs.33,375/-. In view of plaintiff paid additional court fee, issue No.3 regarding valuation and court fee would not survive for consideration. Accordingly, I answer Issue No.3 as would not survive for consideration.
37. ISSUE NO.4:- In para No.2 of the written statement, defendant has baldly contended that suit is liable to be dismissed for non-joinder and mis-joinder of parties. Defendant has not stated who has to be made as party. Defendant is claiming right over the suit 'B' schedule property. Therefore, she cannot be said as mis- joinder to the suit. In view of the above, I hold that defendant failed to prove that the suit is bad for mis- joinder and non-joinder of parties. Accordingly, I answer Issue No.4 in the Negative.
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38. ISSUE NO.2:- In view of my findings on issue No.1 that plaintiff failed to prove that Ex.D. 2 Gift Deed was made by taking her signature by force, putting threats and by undue influence, she is not entitle for the relief of cancellation of the said Gift Deed. In addition to seeking the relief of cancellation of Gift Deed, plaintiff is seeking the relief of injunction restraining the defendant, her agents, henchmen or whomsoever on their behalf from interfering with her possession and enjoyment of the suit 'B' schedule property or taking forcible possession of the said property.
39. Ld. Counsel for the plaintiff has strenuously contended that even after registration of Ex.D. 2 Gift Deed, plaintiff continued in possession of the entire suit 'A' schedule property. The possession of suit 'B' schedule property was not handed over to defendant. Therefore, one of the essential requirements to prove the Gift is not proved. Therefore, Ex.D. 2 Gift Deed is void. 42
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40. From the averments of the plaint, it is clear that plaintiff by admitting the registration of Ex.D. 2 Gift Deed contending that defendant and her family members created the said Gift Deed by taking her and her son's signatures by force, by putting threat on them and also by undue influence. Plaintiff failed to prove the said contentions. Plaintiff also contends that after making Ex.D. 2 Gift Deed, she did not hand-over the possession of suit 'B' schedule property to defendant. In Ex.D. 2 Gift Deed, it is specifically stated that plaintiff handed over the possession of suit 'B' schedule property to defendant. At the time of making Ex.D. 2 Gift Deed, old building was existing in suit 'A' schedule property. A portion of said building was existing in suit 'B' schedule property. Therefore, after execution of Ex.D. 2 Gift Deed, plaintiff has executed Ex.D. 3 declaration. In the said declaration, she stated that Ex.D. 2 Gift Deed was made as per the understanding between her and her siblings. To fulfill legal requirements in Ex.D. 2 Gift Deed it is stated that 43 O.S.No. 26513/2011 she handed over the possession of suit B schedule property to defendant. Further in Ex.D. 3 declaration, it is stated that the sewage and water lines existing in the western portion ie., suit 'B' schedule property shall be utilised by defendant. In Ex.D. 3 it is also stated that plaintiff and defendant mutually agreed to construct a wall dividing the suit 'A' schedule property into 2 equal portions by sharing the cost of construction and the said wall would be the common wall for enjoyment of both. In Ex.D3, it is also stated that plaintiff is at liberty to get electricity and water supply and sanitation in her own cost to her half portion of the property and in the same way, defendant can get electricity and other amenities to suit 'B' schedule property by investing her funds. In Ex.D. 3 it is stated that plaintiff will positively vacate and hand-over the western ½ portion of suit 'A' schedule property to defendant within 1 year. A perusal of Ex.P.57, sanctioned plan would show that on 19.05.2009 plaintiff obtained sanctioned plan for construction of 44 O.S.No. 26513/2011 building in the eastern half portion of suit 'A' schedule property. PW.1 has admitted that as per Ex.P. 57 sanctioned plan, plaintiff has constructed building in the eastern ½ portion of suit 'A' schedule property. Thus, as per declaration, defendant constructed new building in the eastern half portion of property by leaving the suit 'B' schedule property for the enjoyment of defendant. As contended by plaintiff, if she is in possession of entire suit 'A' schedule property, she would not have constructed building only in the eastern half portion of the said property. The recitals of Ex.D. 3 declaration regarding using the segregating wall in the suit 'A' schedule property as a common wall would support the contention of defendant that she is in possession of suit 'B' schedule property .
41. A perusal of Ex.D. 5 and Ex.D. 11 tax paid receipts. Ex.D. 6 endorsement regarding division of suit 'A' schedule property into 2 equal parts, Ex.D. 7 and 9 khata certificates, Ex.D. 8 and 10 khata extracts, Ex.D. 45 O.S.No. 26513/2011 12 BWSSB Demand notice and payment receipt would support the testimony of DWs1 and 2 that on the basis of Ex.D. 2 Gift Deed, khata of suit 'B' schedule property was effected in the name of defendant and she has been paying tax and water bill in respect of suit 'B' schedule property. Thus, the oral and documentary evidence available on record would support the testimony of Dws 1 and 2 that since the date of execution of Ex.D. 2 Gift Deed, defendant is in possession of suit B schedule property.
42. Plaintiff except contending that she is in possession of suit 'B' schedule property has not produced any iota of material to substantiate her contention. She has not raised objection while effecting khata of suit 'B' schedule property in the name of defendant. A perusal of Ex.D. 6 endorsement issued by BBMP regarding division of suit 'A' schedule property would show that in the year 2008 itself,on the basis of Ex.D. 2 Gift Deed, the suit 'A' schedule property was divided into two equal 46 O.S.No. 26513/2011 halves. After division, khata of half portion of suit 'A' schedule property property is standing in the name of plaintiff and she is paying tax only in respect of eastern ½ portion of the suit 'A' schedule property. After division, she has obtained licence and constructed a building on the eastern ½ portion of suit 'A' schedule property. Therefore, absolutely there is zero material to prove that as on the date of suit, plaintiff was in possession of suit 'B' schedule property. Therefore, her contention that defendant interfered with her possession and enjoyment of suit 'B' schedule property and making attempts to dispossess her from the said property cannot be accepted. In view of the above, I hold that plaintiff is not entitle for the relief of perpetual prohibitory injunction as prayed for. Accordingly, I answer Issue No.2 in the negative.
43. ISSUE NO.5: In view of my reasons and findings on issues 1 to 4, I pass the following :
47
O.S.No. 26513/2011 ORDER Plaintiff's suit is dismissed with costs.
(Dictated to the Judgment-Writer, transcript thereof corrected and then pronounced by me in the open court on this the 28th day of September 2021) (MOHAMMED MUJEER ULLA C.G.) LXXIV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 75) ANNEXURES:-
LIST OF WITNESS EXAMINED FOR THE PLAINTIFF:
PW1 Mr. A. Joseph
PW2 Arvind Christopher
LIST OF EXHIBITS MARKED FOR THE PLAINTIFF: Ex.P.1 Certified copy of sale deed dt:08/07/1975.
Ex.P.2 Rectification Deed dated: 08-07-1978
Ex.P.3 Release deed dated: 12.10.2006
Ex.P.4 Khatha certificate
Ex.P.5 Uttara patra/khata endorsement
Ex.P.6to10 Tax paid receipts
Ex.P.11 Memo dated: 25-05-1960 issued by CITB.
Ex.P.12 Death certificate of Emily Theresa Arpudam .
Ex.P.13 to 17 Encumbrance certificates((1to5).
Ex.P.18 to 31 Electricity demand bills & receipts (1to 14).
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Ex.P.32-44 Water bills and receipts(1to 13) Ex.P.45 Endorsement issued by K.G.Halli Police Ex.P. 46 Attendance certificate issued by BEL Ex.P. 47 Certified copy of sale deed dt: 30.12.1981 Ex.P. 48 Certified copy of Rectification Deed dt:4.3.1988 Ex.P. 49 Certified copy of sale deed dt: 12.08.2005 Ex.P. 50 Agreement for permanent power supply Ex.P. 51 Indemnity bond Ex.P. 52 Power of Attorney dt: 14.02.2013 Ex.P. 53 Payment receipt Ex.P. 54 Property tax receipt Ex.P. 55 Affidavit of family tree Ex.P. 56 Property tax receipt Ex.P. 57 Sanctioned Plan Ex.P. 58 Form-A Ex.P. 59 Endorsement issued by kodugondanahalli police station Ex.P. 60 Empty postal cover Ex.P. 61 2 Medical records Ex.P. 62 Plan LIST OF WITNESS EXAMINED FOR DEFENDANTS:
DW1 Mrs. Cecilia J
DW2 Mr. Clement Gerard
LIST OF DOCUMENTS MARKED FOR DEFENDANTS:
Ex.D.1 Certified copy of Release deed dt: 12.10.2006
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Ex.D.2 Gift Deed dt: 16.08.2008
Ex.D.3 Declaration
Ex.D.4 Gazette Notification
Ex.D.5 Tax paid receipt
Ex.D.6 Letter issued by BBMP regarding partition
Ex.D.7 Khata certificate .
Ex.D.8 Katha extract
Ex.D.9 Katha certificate
Ex.D.10 Katha extract
Ex.D.11 Tax paid receipt
Ex.D.12 BWSSB demand Notice & payment receipt Ex.D.13 Endorsement dt: 08.08.2011 issued by KG Halli Police .
Ex.D.14 Acknowledgment Ex.D.15 Certified copy of release deed dated:12/02/2006.
Ex.D.16 Certified copy of Gift Deed dated:17.12.2007 (MOHAMMED MUJEER ULLA C.G.) LXXIV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 75) 50 O.S.No. 26513/2011