Bangalore District Court
Smt. Muishtary Begum vs ) Syed Mahaboob on 28 March, 2016
IN THE COURT OF THE XXIV ADDL.CITY CIVIL &
SESSIONS JUDGE BANGALORE CITY (CCH-6)
This the 28th day of March, 2016
Present: Sri. S.SRIDHARA,
B.Sc.,LL.B.,
th
24 Addl. City Civil & Sessions Judge,
Bangalore City.
O.S.No.8991/2006
Plaintiff: Smt. Muishtary Begum
W/o. Maqbool Ahmed since
deceased by her legal heirs)
1(a) Mr. Maqbool Ahmed
S/o.late Abdul Jaleel,
aged about 62 years,
1(b) Mr. M. Zakirulla Sharieff
S/o.Maqbool Ahmed,
aged about 42 years
1(c) Mr. M. Zubairulla Sharieff
S/o.Maqbool Ahmed,
aged about 40 years,
1(d) Mr. M. Zubeena Shahawar
W/o. Taqiulla Khan,
aged about 41 years,
1(e) Mr. M. Khutub Khaiser,
W/o. Maqbool Ahmed,
aged about 33 years,
All are residing at No.1770,
Saitpalya, St. Thomas
Town post, Bangalore 84.
By Sri.T.V.Tajpeer, Advocate.
2 O.S.8991/2006
V/s.
Defendants 1) Syed Mahaboob
S/o. Syed Kareem,
aged about 44 years,
2) Mr. Meher Taj Banu
W/o. Syed Hamaboob,
aged about 42 years,
3) Mrs. Hameed Banu
W/o Syed Mahaboob
aged about 42 years,
All are residing at No.24/25,
2nd cross, Krishnamma garden,
J.C. Nagar, Bangalore 6.
By Sri.D.Sheshadri, Advocate.
Date of institution of the suit: 13.10.2006
Nature of the suit: Declaration & Injunction
Date of commencement of 12.01.2009
recording of evidence:
Date on which Judgment was 28.03.2016
pronounced:
Duration Days Months Years
15 05 09
JUDGMENT
The instant suit filed by the plaintiff against the defendants is one for declaration to declare that the gift deed entered into between the defendants dated 3 O.S.8991/2006 13.2.2006 is null and void; to issue direction to defendants 2 and 3 to execute the registered sale deed in favour of the plaintiff; further directing the 1st defendant to execute the same as confirming witness; to issue direction to the Corporation authority to cancel the khatha registered in the name of 1st defendant and for consequential relief of permanent injunction against the defendants restraining them and their agents, henchmen or any other persons claiming under the defendants not to create any third party right over the suit schedule property and also for cost and such other reliefs.
2. During the pendency of the suit, plaintiff died and the legal heirs of the deceased plaintiff were brought on record as per the Court order dated 3.9.2014.
2. a) The plaintiff has stated that defendants 2 and 3 were the joint and absolute owners of the property bearing site No.2, PID No.92-89-2 (old site No.5 being a portion of Sy.No.55/4 of K.G.Baiderhalli), situated at 3rd 'A' Main Road, Kempaiah Block, BBMP ward No.92, 4 O.S.8991/2006 Bengaluru measuring 1500 square feet, which is morefully shown in the plaint schedule. The plaintiff further stated that defendants 2 and 3 acquired the schedule property under registered sale deed dated 15.9.2003 as per particular shown in para-3 of the plaint.
b) The plaintiff further stated that the 1st defendant is the husband of 2nd and 3rd defendants having close contact and taking the business advice from the children of plaintiff i.e. Zakirulla Sharieff and Zubairulla Sharief. The plaintiff further stated that the defendants approached the plaintiff to dispose of the schedule property in favour of the plaintiff and having finalized and negotiated the sale transaction in respect of the schedule property. The defendants agreed to dispose of the schedule property in favour of the plaintiff for sale consideration of Rs.15,00,000/-. The plaintiff further stated that the 2nd and 3rd defendants were executed the sale agreement in favour of the plaintiff to confirm the sale transaction and the defendants also admitted about the receipt of entire 5 O.S.8991/2006 sale consideration, which is clearly disclosed in the sale agreement dated 20.3.2004.
c) The plaintiff further stated that the 1st defendant being husband of the 2nd and 3rd defendants affixed his signature as a witness to confirm the sale transaction between the plaintiff and defendants 2 and
3. The copy of the sale agreement is produced. The plaintiff further stated that due to incomplete documents of the schedule property i.e. non-transfer of khatha certificate in favour of 2nd and 3rd defendants and also to meet the convenience of the plaintiff, the defendants 2 and 3 along with the 1st defendant as a witness jointly and severally executed the notarized general power of attorney in favour of the plaintiff. The copy of the same is also produced.
d) The plaintiff further stated that the 2nd and 3rd defendants executed the general power of attorney on the basis of the sale agreement transaction between the parties and also to confirm the sale agreement transaction, the 2nd and 3rd defendants have delivered 6 O.S.8991/2006 physical possession of the schedule property along with all the original documents, which are in possession of the defendants in favour of the plaintiff. The plaintiff further stated that immediately after execution of the sale agreement and GPA and after having taken possession of all the original documents, the plaintiff is enjoying the schedule property as absolute owner without any let or hindrance from anybody.
e) The plaintiff also further stated that having close contact with the 1st defendant and children of the plaintiff, the plaintiff approached through her second son Zubairullah Sharieff to register the schedule property in favour of the plaintiff in the 1st week of April 2006, but the 1st defendant has not shown any inclination to register the schedule property in favour of the plaintiff. The plaintiff further stated that on 12.4.2006 when the plaintiff approached the corporation authorities to get necessary khatha certificate, assessment extract pertaining to the schedule property for registration of the schedule 7 O.S.8991/2006 property in favour of the plaintiff, it is surprised and astonished to see that by suppressing all the material facts with an dishonest intention to grab the schedule property and also with an intention to cheat the plaintiff without any information, the 2nd and 3rd defendants jointly executed the gift deed in favour of 1st defendant on 13.2.2006 and on the fraudulent gift deed, the 1st defendant got transferred the khatha of the schedule property in his favour. The certified copy of the gift deed is also produced.
f) The plaintiff further stated that even in spite of receipt of entire sale consideration from the plaintiff and even though the defendants 2 and 3 delivered all the original documents along with the possession of the schedule property in favour of the plaintiff by receiving the entire sale consideration from the plaintiff, the defendants are jointly and severally by suppressing the material facts in respect of the sale transaction created false and fabricated gift deed only with an intention to grab the schedule property from 8 O.S.8991/2006 the plaintiff. The plaintiff further stated that after execution of the sale agreement and GPA and after delivery of possession in favour of the plaintiff, the plaintiff paid tax since 2003 to 2006 in respect of the schedule property. The copies of tax paid receipts are also produced.
g) The plaintiff further stated that the plaintiff is having absolute right over the suit schedule property by virtue of the sale agreement and GPA executed in between the plaintiff and defendants. The defendants taking undue advantage that the property is not registered in favour of the plaintiff, the 2nd and 3rd defendants created false gift deed in favour of the 1st defendant on 13.2.2006, which is null and void and same has to be cancelled in the revenue records.
h) The plaintiff further stated that immediately after coming to know about the gift deed, the plaintiff got issued legal notice to the defendants. Even after receipt of the legal notice, the defendants instead of making necessary arrangement to cancel the gift deed 9 O.S.8991/2006 and to execute the registered sale deed in favour of the plaintiff in respect of the schedule property, but the defendants caused untenable reply by creating different story in respect of the schedule property. Thereafter the plaintiff issued the rejoinder notice on 2.9.2006 to the reply notice dated 31.7.2006 by giving proper explanation.
i) The plaintiff further stated that on the basis of the sale agreement and GPA, the plaintiff is entitled for the relief of specific performance to register the sale deed after cancellation of the gift deed. The entries made in the revenue records in respect of the schedule property are not binding on the plaintiff. The plaintiff further stated that she is the absolute owner of the schedule property and she paid entire sale consideration amount and acquired the property. The defendants are being the husband and wives colluding with each other fraudulently created and documents, which shows the dishonest intention of cheating the plaintiff to grab the schedule property. 10 O.S.8991/2006
j) In para-14 of the plaint, the plaintiff also pleaded cause of action and praying this Court to decree the suit as prayed for.
3. The plaint schedule reads as follows:
All that piece and parcel of the residential vacant site bearing No.2 (Old site No.5 being a portion of Sy.No.55/4 of K.G.Baiderhalli), situated at 3rd 'A' Main Road, Kempaiah Block, Bengaluru, BBMP Ward No.92, Bengaluru, which is measuring East to West 50 feet and North to South 30 feet and bounded on East by: Road;
West by: Private property;
North by: Road;
South by: Site No6.
4. a) The defendants filed written statement denying all the plaint averments and further contended that the suit filed by the plaintiff is not maintainable either in law or on facts and same is liable to be dismissed. The plaintiff has no right, title and interest over the schedule property and hence she has no locus standi to file this suit.11 O.S.8991/2006
b) Defendants further contended that it is true that the 1st defendant is the husband of 2nd and 3rd defendants. Infact the 1st defendant and the sons of plaintiff are the business partners in import and export business. During the course of business, the 1st defendant involved in a criminal case and the sons of plaintiff i.e. Zakirulla Sharieff and Zubairulla Sharieff helped the 1st defendant to get released on bail. Defendants further stated that the sons of plaintiff obtained the signature of defendants 2 and 3 on some blank bond papers stating that those are to be produced before the Court in respect of the release of 1st defendant and by believing the words of the plaintiff's son, they put their signatures on some blank bond papers.
c) Defendants further contended that they have not executed any of the documents and have not received any amount from the plaintiff. The plaintiff by colluding with her sons got filled the blank bond papers unlawfully with an intention to cause wrongful loss to the defendants and to make wrongful gain for herself. 12 O.S.8991/2006 The defendants denied the averments made in para-6 of the plaint and further stated that at no point of time, the possession of the schedule property was handed over to the plaintiff and she is not in possession of the schedule property and infact till today the defendants are in physical possession and enjoyment of the schedule property as absolute owners without any let or hindrance from anybody.
d) Defendants further contended that the plaintiff and her sons by colluding with each fabricated the false documents with an intention to grab the schedule property and to suit her illegitimate claim. The defendants further contended that the plaintiff and her sons took advantage of the criminal case have obtained signatures of the defendants 2 and 3 and got filled those blank singed bond papers to suit her illegitimate claim, which is not binding on the defendants.
e) Defendants further contended that infact the 2nd and 3rd defendants have not executed any of the 13 O.S.8991/2006 documents alleged by the plaintiff and hence the very execution of those documents are not within the knowledge of the defendants. Therefore the defendants 2 and 3 have executed gift deed in favour of the 1st defendant, which enables the 1st defendant to approach the concerned authority to obtain necessary permission and sanction for construction.
f) Defendants further contended that the averment made in para-9 of the plaint is denied as false and same is concocted for the purpose of this suit and the plaintiff is put to strict proof of the same. The defendants further contended that the relief sought for cancellation of gift deed does not arise at all and hence the suit for declaration that the gift deed is null and void is not maintainable and same is liable to be dismissed.
g) Defendants further stated that the averments made in para-11 to 13 of the plaint are all false, baseless and far away from truth. Infact the defendants never intended to sell the schedule 14 O.S.8991/2006 property to anybody much less to the plaintiff, but their intention is to keep the schedule property with them and desired to put up construction of their own. Hence the question of alienating the schedule property to third parties does not arise at all.
h) Defendants further contended that there is no cause of action for the plaintiff to file this suit. The suit is not maintainable for non-joinder of necessary party since the plaintiff has sought for the relief of direction to the corporation authority to cancel the khatha registered in the name of the 1st defendant. The suit is not properly valued and the Court fee paid by the plaintiff is not sufficient.
i) The defendants also resisted the suit on various other grounds and pray for dismissal of the suit with exemplary costs.
5. Based on the above pleadings of the parties, my learned Predecessor has framed the issues:
1. Whether the plaintiff proves that the gift deed dated 13.2.2006 is null and void?15 O.S.8991/2006
2. Whether the plaintiff is entitled for the relief of direction to defendants 2 and 3 to execute the registered sale deed in favour of plaintiff and directing the 1st defendant to execute the same as confirming witness?
3. Whether the plaintiff is entitled for the relief of direction to the Corporation Authority to cancel the khatha registered in the name of the 1st defendant?
4. Whether the plaintiff is entitled for mandatory injunction as sought in the plaint?
5. Whether the defendants prove that they are entitled for compensatory costs under Section 35A of CPC?
6. Whether the suit is bad for non-joinder of necessary parties?
7. What order or decree?
6. However my learned predecessor on 16.1.2012 recasted the issues that were framed earlier and recasted issues read as follows:
1. Whether the plaintiff proves that defendants agreed to sell the suit schedule property for a consideration of Rs.Fifteen Lakhs and defendants No. 2 & 3 executed the sale agreement on 20.3.2004?16 O.S.8991/2006
2. Whether the plaintiff proves that she has paid entire sale consideration of Rs.Fifteen Lakhs to the defendants?
3. Whether the plaintiff proves that the gift deed dated 13.2.2006 executed by defendant No. 2 & 3 in favour of 1st defendant is null and void?
4. Whether the suit is bad for non-joinder of necessary parties?
5. Whether the suit is properly valued and court fee paid is sufficient?
6. Whether the plaintiff is entitled to the relief of direction to the corporation authorities to cancel the khatha registered in the name of defendant No.1?
7. Whether the plaintiff is entitled for the relief's claimed?
8. What decree or order?
7. In support of the case of the plaintiff, the power of attorney holder of the plaintiff is examined as PW.1; the plaintiff herself is examined as PW.2 and two more witnesses are examined on behalf of the plaintiff as per PW.3 and PW.4 and got marked Ex.P.1 to P.10 and Ex.P.10(a). Ex.P.10 is marked twice.
8. The 3rd defendant is examined as DW.1 and got marked Ex.D.1 and D.14. The 1st defendant is 17 O.S.8991/2006 examined as DW.2 and through him Ex.D.15 is got marked and Ex.D.16 is marked by consent and accordingly closed their evidence.
9. Heard both sides and perused the records.
10. In addition to that, learned counsel for the plaintiff so also learned counsel for the defendants filed their respective written arguments.
11. In addition to that learned counsel for the plaintiff also relied upon the following decisions:
1. 2010(1)SCC 83 Grasim Industries Limited & Another Vs. Agarwal Steel.
2. AIR 2001 KERALA 123 In re: Kuttadan Velayudhan and others.
3. 2012 (5) SCC 712 Narinderjit Singh Vs. North Star Estate Promoters Limited.
12. On the other hand, learned counsel for the defendants also relied upon the following decisions:
1. AIR 1977 MADRAS 83 Manickathammal & others Vs. Nallasami Pillai and others.18 O.S.8991/2006
2. AIR 1972 Gauhati 44 (V59 C13) Dhiren Bailung Vs. Must. Bhutuki and others.
3. AIR 2002 MADRAS 131 P.Ratnaswamy Vs. A.Raja and another.
13. Perused the written arguments of both sides and also perused the decisions relied upon by the parties.
14. My findings on the above issues are:
Issue No.1: Negative.
Issue No.2: Negative.
Issue No.3: Negative.
Issue No.4: Negative.
Issue No.5: Affirmative.
Issue No.6: Negative.
Issue No.7: Negative.
Issue No.8: As per the final order
for the following;
REASONS
15. Issue Nos.1 to 3: Since these three issues are interlinked with each and require common discussion of documents and facts, they are taken together for discussion to avoid repetition of facts.
16. When the plaintiff pleads that the defendants agreed to sell the suit schedule property in her favour 19 O.S.8991/2006 for sale consideration of Rs.15 Lakhs and accordingly defendants 2 and 3 executed sale agreement on 20.3.2004, the burden is on the plaintiff to prove issue No.1.
17. It is for the plaintiff to establish before the Court that she has paid the entire sale consideration of Rs.15 Lakhs to the defendants. When the plaintiff pleads that the gift deed dated 13.2.2006 executed by the 2nd and 3rd defendants in favour of the 1st defendant is null and void, the burden is on the plaintiff to prove issue No.3 also.
18. On careful perusal of the written statement filed by defendants 1 to 3, the specific defence finds a place in para-3 of the written statement contending that infact the 1st defendant and the sons of plaintiff are the business partners in import and export business. The defendants also taken the defence contending that during the course of business, the 1st defendant involved in a criminal case and the plaintiff's sons i.e. Zakirulla Sharieff and Zubairulla Sharieff helped the 1st 20 O.S.8991/2006 defendant to get released him on bail. It is also the defence of the defendants that the plaintiff's sons obtained the signature of defendants 2 and 3 on some blank bond papers stating that those are to be produced before the Court in respect of the release of 1st defendant and the defendants 2 and 3 by believing the words of the plaintiff's sons, have put their signatures on some blank bond papers. It is also the specific defence of the defendants that they have not executed any of the documents and have not received any amount from the plaintiff and the defendants at no point of time handed over the possession of the suit property in favour of the plaintiff and also taken the defence contending that the plaintiff and her sons have colluded together and fabricated the false documents with dishonest intention to grab schedule property, to suit the plaintiff's illegitimate claim and also contended that the plaintiff and her sons taking advantage of the criminal case that was registered against the 1st defendant, have obtained signatures of the defendants and got filled those blank signed bond papers to suit 21 O.S.8991/2006 the illegitimate claim of the plaintiff. In view of this specific defence of the defendants 1 to 3 in their written statement, the burden lies heavily on the plaintiff to prove issue Nos.1 to 3, particularly to prove the fact of execution of the agreement of sale by defendants 2 and 3 in favour of the plaintiff on 20.3.2004 and further to prove that the plaintiff infact paid the entire sale consideration of Rs.15 Lakhs to the defendants.
19. In support of the case of the plaintiffs, they relied upon the documentary evidence Ex.P.1 to P.10, Ex.P.10(a).
20. Ex.P.1 is the alleged Special Power of attorney executed by the plaintiff Mushtary Begum in favour of one of her sons by name Zubair Ulla Sharieff, who is examined in this case as PW.1 authorising him to give evidence and also for other purposes shown in the power of attorney Ex.P.1.
21. Ex.P.2 is the registered absolute sale deed dated 15.9.2003 executed by one Rangadhamappa in favour 22 O.S.8991/2006 of 2nd and 3rd defendants in respect of the very same plaint schedule property, wherein defendants 2 and 3 shown to have purchased the plaint schedule property for sale consideration of Rs.8,25,000/- and accordingly possession of the plaint schedule property is shown to have delivered in favour of the purchasers i.e. defendants 2 and 3 in this case and defendants 2 and 3 are none other then the wives of the 1st defendant. Ex.P.2 is an undisputed document through out and it is not in dispute that the 2nd and 3rd defendants purchased the suit property from their vendor Rangadhamappa. The description, measurement and boundaries shown in the schedule of Ex.P.2 clearly tallies with the particulars of the property shown in the plaint schedule.
22. Ex.P.3 is the alleged agreement of sale dated 20.3.2004 said to have been executed by 2nd and 3rd defendants in favour of the plaintiff in this case (stamp paper Ex.P.3 is shown to have purchased on 5.3.2004). As per this alleged agreement of sale, there is also 23 O.S.8991/2006 reference with regard to the sale deed executed in favour of defendants 2 and 3 as per Ex.P.2. Though there is a recital in Ex.P.3 to the effect that possession of the schedule property is delivered in favour of the purchaser, but except the recital found in Ex.P.3, no other convincing documents are produced by the plaintiff to show that she was put in possession of the plaint schedule property acting in pursuance of Ex.P.3. This alleged agreement of sale is in respect of the very same property, which is morefully shown in the plaint schedule so also in the schedule of Ex.P.2 sale deed.
23. On perusal of Ex.P.3 at page No.4 and at point No.1.2, it is specifically mentioned as if "the Purchaser on the day of execution of this agreement has paid to the vendors a sum of Rs.15,00,000/-. The vendor admits and acknowledges the receipt of the said sum of Rs.15,00,000/- in presence of the witnesses to the full and final satisfaction".
24. On perusal of Ex.P.3 the alleged agreement of sale, there is no specific recital as to the mode of 24 O.S.8991/2006 payment of the said huge sum of Rs.15,00,000/- in the year 2004 and to show as to whether the said sum of Rs.15,00,000/- was paid either by way of cash or through cheque. Though there is recital stating that the said sum was paid in presence of the witnesses, none of the witnesses is examined in this case and one of the witnesses of Ex.P.3 is none other then the 1st defendant in this case, who is also the husband of defendants 2 and 3 and defendants in their written statement so also in their evidence denied the receipt of any sale consideration from the plaintiff and also contended that the alleged agreement of sale is fabricated and same was created by obtaining the signatures of the defendants on some blank bond papers.
25. Similarly on perusal of the alleged agreement of sale Ex.P.3, condition No.2 reads as follows:
2. The VENORS have agreed to furnish the following documents and statutory clearances necessary for completion of the sale transaction.25 O.S.8991/2006
a) To furnish up date tax paid receipts from BMP;
b) Encumbrance certificate for 13 years, till date in Form 15.
c) That the khatha of the property stands in the name of previous vendors, the vendors shall get the khatha transferred in their names and shall furnish khatha certificate, khatha extract from BMP at least 15 days prior to the execution of sale deed.
d) Any other statutory permission and clearances, that may be required at the time of registration of the sale deed as per law governing the same, which may be in force.
26. From the contents of the alleged agreement of sale, it also discloses the fact that the khatha in respect of the property shown in the plaint schedule was not transferred in the name of defendants 2 and 3 as on the date of execution of Ex.P.3 the alleged agreement of sale and accordingly, the plaintiff called upon the defendants to furnish the khatha extract, khatha certificate at least 15 days prior to execution of the sale deed.
27. Similarly on perusal of Ex.P.3, the alleged agreement sale, the time stipulated for execution of the sale deed is six months from the date of execution 26 O.S.8991/2006 of the agreement i.e. from 20.3.2004 and also stated that the plaintiff shall furnish the documents referred to in Class-2(a) to 2(d). It is also worth to mention at this stage itself that the original sale deed that was executed in the name of defendants 2 and 3 has been produced by the plaintiff in this case. Ex.P.3(a) to P.3(h) are the signatures of the 3rd defendant; Ex.P.3(i) to P.3(P) are the signatures of the 2nd defendant and the signature of the 1st defendant finds a place as witness as per Ex.P.3(q).
28. Ex.P.4 is one of the alleged general power of attorney dated 20.3.2004 said to have been executed by the 2nd and 3rd defendants in favour of the plaintiff in this case, wherein it is shown as if the defendants 2 and 3 authorised the plaintiff to negotiate for the sale of schedule property and to enter into an agreement of sale with respective purchasers and also to receive the advance sale consideration and to give proper discharge in respect of the schedule property, to execute and register the sale deed in respect of the 27 O.S.8991/2006 schedule property in favour of the prospective purchaser or his/their nominees and to present the said document before the Sub-Registrar and further to sign on behalf of the executants defendants 2 and 3.
29. In addition to that, Ex.P.4 also indicates the fact that power of attorney was also empowered to appear before the Corporation authority to get the khatha transferred, to pay taxes, to sigh the forms, applications, affidavits etc. So, from this it is also crystal clear that there was no need for the plaintiff to wait till the defendants get the khatha transferred in their favour, but on the other hand, authority was given to the power of attorney holder i.e. plaintiff to approach the concerned Corporation authorities to get the khatha transferred in the name of the defendants 2 and 3 so as to enable the 2nd and 3rd defendants to execute the sale deed in favour of the plaintiff in pursuance of the alleged agreement of sale Ex.P.3.
30. The recital of Ex.P.4 GPA at apge-2, para-6, in my opinion, is contrary to the contents of the alleged 28 O.S.8991/2006 agreement of sale Ex.P.3. Why the plaintiff has not approached the BMP authorities to get the khatha transferred in the name of defendants 2 and 3 in pursuance of Ex.P.4 has not been satisfactorily explained either in the plaint or in the evidence of the plaintiff in this case.
31. In addition to all these, there is no reference of the alleged agreement of sale Ex.P.3 in the alleged power of attorney said to have been executed by defendants 2 and 3 in favour of the plaintiff as per Ex.P.4. It is also worth to mention at this stage itself that the stamp paper to execute Ex.P.4 was purchased on 5.3.2004. It is also worth to mention at this stage itself that the stamp papers Ex.P.3 and P.4 both purchased at the Office of the Sub-Registrar, Bellur (appears to be the Nagamangala Taluk, Mandya District). There is no explanation either on the plaint or in the chief examination affidavit of the plaintiff as to why the stamp paper was purchased at Bellur. Ex.P.4(a) to P.4(d) are the signatures of 3rd defendant. 29 O.S.8991/2006 Ex.P.4(e) is the alleged signature of the 1st defendant. The 1st defendant, who is examined in this case as DW.2 categorically denied the signature in Ex.P.4 as per Ex.P.4(e).
32. It is also worth to mention at this stage itself that though the alleged signature of the 2nd defendant finds a place in all pages of Ex.P.4, her signature was not marked for the reasons best known to the plaintiff. It is also worth to mention at this stage itself that the alleged holder of the power of attorney i.e. the plaintiff has not affixed her signature in Ex.P.4 for the reasons best known to her. In addition to that, the plaintiff failed to examine any one of the attestors of Ex.P.4 to show that infact there was intention on the part of defendants 2 to 3 to execute the power of attorney in favour of the plaintiff and further to show that infact Ex.P.4 was executed by defendants 2 and 3 in presence of the attestors and further to show that the 1st defendant affixed his signature as one of the witnesses in Ex.P.4.
30 O.S.8991/2006
33. Ex.P.5 is the special notice issued from BMP on 7.3.2003, which shows that the khatha in respect of the property bearing No.2 situated at 3rd 'A' Main road, Kempaiah Block is in the name of one G.Rangadhamappa as anubhavadar khatha and the said G.Rangadhamappa is none other then the vendor of defendants 2 and 3 as per the sale deed Ex.P.2. This document also reveals the fact that the concerned person was called upon to pay taxes from 1995-96 to 2002-03.
34. Ex.P.6 is the khatha certificate, which also reveals the fact that one G.Rangadhamappa is the anubhava Kathedar of property No.2 and this certificate was issued on 22.3.2003 and this document was issued from Bengaluru Mahanagara Palike and this document was also issued to one Rangadhamappa.
35. Ex.P.7 is the assessment list extract issued from BMP for the period from 1.4.2002 to 22.3.2003, which also reveals the fact that G.Rangadhamappa was the anubhavadar of the property bearing No.2 and the site 31 O.S.8991/2006 measurement is shown as 125X50 feet and constructed area is shown as 1000 square feet i.e. ACC sheet roofed house.
36. Ex.P.8 and Ex.P.9 both are the tax paid receipts paid by G.Rangadhamappa in respect of the very same property bearing No.2, 3rd 'A' Main, Kempaiah Block and these tax paid receipts are dated 22.9.2005 and 26.4.2003 for the assessment year 2004-05, 2005-06 and 2003-04 and part of the year 2002.
37. Ex.P.10 is the attested copy of the affidavit sworn to by the 1st defendant in this case, which reveals the fact that he waited for two long days and he was made to sit from morning to evening without recording his true statement. This document also reveals the fact that the 1st defendant had apprehended by Customs Office on 25.3.2004 at Air Port at Bengaluru while he was traveling from Bengaluru to Kuwait and also reveals the fact that he was carrying 21,800 US Dollars and also discloses that on enquiry, it was found that he could not produce the valid documents towards the 32 O.S.8991/2006 illicit possession of the said Foreign Currency and also discloses that the 1st defendant was brought to the Office of the Customs on 26.3.2004 and certain statements were recorded by the Officials of the Customs, Bengaluru. This document also reveals the fact that the 1st defendant was made to write that the said Foreign Currency was handed over to him by Sri.Zuber, who is the brother of Zakirullah Sharieff, who is the partner of M/s. Kitch Merchandise, Bengaluru.
38. The 1st defendant also sworn to the fact that his statement was taken under threat, coercion and force and he was lured by the officers to give his statement that it will help the 1st defendant in the case and accordingly he had given his earlier statement on the behest of the customs officials.
39. Ex.P.10 is the Pass Book pertaining to the firm known as Sharieff Creations and the relevant entry is marked as Ex.P.10(a) and the relevant date i.e. 20.3.2004, which reveals the fact that a cheque was 33 O.S.8991/2006 honoured bearing No.00219709 for Rs.5,00,000/- and the name is shown as Zubair, who is none other than the plaintiff No.1(c) and the amount is shown to have paid by way of cash.
40. The defendants 1 to 3 on the other hand relied upon documentary evidence of Ex.D.1 to D.15.
41. Ex.D.1 is the show-cause notice dated 20.9.2004 issued from the office of the Commissioner of Customs, Bengaluru to defendant No.1 by name Syed Mahaboob Syed Kareem and also to the legal heirs of the plaintiff i.e. Zakirullah Sharieff- plaintiff No.1(b) and Zubairullah Sharieff- plaintiff No.1(c). This document indicates the fact that the 1st defendant was arrested on 26.3.2004 at the office of the Deputy Commissioner of Customs for having illegally possessed US Currency and also discloses the fact that he was produced before the Magistrate, Special Court of Economic Offences and he was remanded to the Judicial Custody and enlarged on bail on 26.3.2004 with conditions. This also indicates the fact that the 1st defendant was involved in 34 O.S.8991/2006 criminal offences for having illegally possessed Foreign Currency to transport the same while traveling from Bengaluru to Kuwait. This document also indicates the fact that there was some sale negotiation between the family members of the plaintiff and the defendants and also with regard to the execution of the alleged sale agreement and general power of attorney. This document also indicates as if sale consideration was fixed at Rs.15 Lakhs and amount was jointly paid from the account of Zakirullah, Zubairullah Sharieff, Mushtray Begaum- the plaintiff in this case and Kamarullah Khan and Maqbool Ahmed to Syed Mahaboob Syed Kareem- the 1st defendant in this case in the form of Indian Currency and payment was drawn from the Indian bank, Benson Town, Kotak Mahindra, Residency Road and Amanath Co-operative Bank, Shivajinagar and that amount of Rs.15,00,000/- was paid in parts between 20.3.2004 to 23.3.2004 in favour of the 1st defendant on behalf of the wives of the 1st defendant i.e. defendants 2 and 3. This recital finds a place in para-11 of the Ex.D.1 and same was 35 O.S.8991/2006 disclosed in the statement of one Sri.Zakirullah Sharieff- one of the partners of M/s. Kitch Merchandise.
42. From the contents of Ex.D.1, it also indicates the fact that the 1st defendant was involved in a criminal case and remanded to Judicial custody and he was released on bail and this document, in my opinion, substantiates the defence of the defendants in a way that the 1st defendant was involved in criminal case and the legal heirs of the plaintiff helped the 1st defendant in getting bail in the criminal case that the 1st defendant was involved.
43. Ex.D.2 is the orders passed by the Office of the Commissioner of Customs dated 31.3.2005, wherein the operative portion of the said order reads as follows:
"I hold the Foreign currency of US $21800/- (US Dollars twenty one thousand eight hundred only) recovered and seized from the possession of Shri.Syed Kareem vide Mahazar dated 25.3.2004 as being liable to absolute confiscation and I confiscate the same under Section 122 of 36 O.S.8991/2006 the Customs Act 1962 read with Sections 113 (d) and (h) of the Customs Act, Section 3 and 4 of the FEMA 1999, Regulation 7 of the Foreign Exchange Management (Export and Import of Currency) regulations, 2000, Regulation 3 of the Foreign Exchange Management (Possession and Retention of Foreign Currency) Regulations, 2000 and the RBI Regulations in general.
Xxxxxxxxxxxxxxxxxxxxxxxxx xxxxxx xxxxxxxxxxxxxxxxxxxxxxx.
a) Xxxxxxxxxxxxxxxxxxxxxxxx xxxx xx xxxxxxxxxxxx.
b) I impose a penalty of Rs.1,25,000/- Rupees one lakh twenty five thousand only) on Shri. Syed Mahaboob Syed Kareem under Section 114 of the Customs Act 1962.
c) I impose a penalty of Rs.50,000/-
(Rupees Fifty thousand only) on Shri. Zakirullah Sharieff under Section 114 of the Customs act 1962.
d) I impose a penalty of Rs.50,000/-
(Rupees Fifty thousand only) on Shri. Zubairullah Sharieff under Section 114 of the Customs act 1962.
e) The aforesaid penalties shall be paid within 15 days of this order.
44. From the contents of Ex.D.2, it also indicates the fact that the Foreign Currency, which the 1st defendant 37 O.S.8991/2006 was possessed illegally, has been confiscated by Special Court and it is the specific defence of the defendants 1 to 3 that the said Foreign Currency belongs to legal heirs of the plaintiff and it is also the defence of the defendants that for the recovery of the said amount, which the legal heirs of the plaintiff lost in the form of Foreign Currency, which is confiscated by the Customs Officials, the legal heirs of the plaintiff in collusion with the plaintiff have fabricated the alleged agreement of sale Ex.P.3 and alleged GPA Ex.P.4.
45. Ex.D.3 is the office proceedings in BMP in respect of the change of khatha proceedings held before the competent authorities, wherein based on gift deed of the 1st defendant, he has given representation to BMP authorities seeking change of khatha in the name of the 1st defendant. This also indicates the fact that up to 2006, neither the plaintiff nor his legal heirs approached the BMP authorities seeking change of khatha either in the name of the defendants 2 and 3 to 38 O.S.8991/2006 get the sale deed registered in the name of the plaintiff by virtue of the alleged agreement of sale Ex.P.3 or seeking change of khatha in the name of the plaintiff by virtue of the alleged GPA executed by the defendants 2 and 3 in favour of the plaintiff as per Ex.P.4 .
46. Ex.D.4 is the special notice issued from the office of BMP dated 18.4.2006 for having bifurcated the khatha in respect of the property bearing No.2 and by virtue of this order, the khatha was recorded in the name of the 1st defendant in respect of the northern portion of the property measuring 50X30 feet and accordingly after bifurcation of the khatha, the 1st defendant's property was given new sub-municipal khatha No.2/1 and accordingly fixed the tax at Rs.3,600/-. In respect of the remaining property is concerned, the khatha was continued in the name of the earlier kathedar by name Rangadhamappa.
47. Ex.D.5 is the sketch that was enclosed with the application seeking bifurcation of the khatha pertaining 39 O.S.8991/2006 to the property measuring 30X50 feet and remaining portion of the land belongs to Rangadhamappa.
48. Ex.D.6 is the khatha extract, which shows that the 1st defendant is shown to be the kathedar of property bearing new No.2/1 measuring 1500 square feet and the 1st defendant is shown to be the owner of the said property. Ex.D.7 is the related khatha certificate, which also reveals that the 1st defendant is the kathedar in respect of the property bearing PID No.92-89-2/1. This khatha was recorded in the name of the 1st defendant by virtue of the orders passed by BMP as per Ex.D.4.
49. Ex.D.8 and D.9 both are tax paid receipts paid by Syed Mahaboob- the 1st defendant in this case dated 8.5.2010, 11.5.2010 for having paid tax in respect of the property bearing PID No.92-89-2/1 for the assessment year 2009-10, 2010-11.
50. Ex.D.10 is an important document, which is the extract of the Attendance Register pertaining to 40 O.S.8991/2006 Smt.Hameeda Banu, who appears to be the 3rd defendant in this case so also the wife of the 1st defendant and this document has been produced for the limited purpose to show that the 3rd defendant was on duty on 20.3.2004 i.e. on the date of execution of the alleged agreement of sale Ex.P.3 and alleged GPA Ex.P.4. This document has been produced by the defendants to establish before the Court that infact the 3rd defendant has not executed both Ex.P.3 and P.4 and further to show that she was on duty on the relevant day i.e. on 20.3.2004.
51. On careful perusal of the cross-examination of DW.1, who is none other than the 3rd defendant in this case, there is no effective cross-examination of DW.1 so as to disbelieve the entries found in Ex.D.10 or to show that infact the 3rd defendant was very much present as on the date of execution of Ex.P.3 and P.4 in the name of the plaintiff.
52. Ex.D.11 is the office copy of the legal notice dated 22.7.2006 issued by the plaintiff in favour of the 41 O.S.8991/2006 defendants 1 to 3, wherein the plaintiff has narrated the alleged execution of the agreement of sale Ex.P.3 and the alleged execution of GPA as per Ex.P.4 dated 20.3.2004 and accordingly called upon the defendants to perform their part of obligation i.e. to get the sale deed executed in favour of the plaintiff in pursuance of the alleged agreement of sale Ex.P.3. Though para-4 of the legal notice indicates the fact that the plaintiff filed objection before the Corporation Authorities in the khatha proceedings of the 1st defendant, but no such objection copy is produced nor summoned from the Corporation Authorities. When exactly objection was filed by the plaintiff has not been mentioned in the legal notice Ex.D.11. Though under Ex.P.3 the alleged agreement of sale, the time stipulated for performance of the contract is six months from the date of agreement i.e. Ex.P.3, but legal notice was issued only on 22.7.2006 i.e. after long lapse of two years four months. Whether the time is the essence of contract or not is also a matter to be appreciated by looking into the evidence available on record and the conduct 42 O.S.8991/2006 of the plaintiff in not issuing the legal notice Ex.D.11 well within the stipulated period of six months as shown in the legal notice Ex.D.11.
53. Ex.D.12 is the reply notice issued by the defendants to the plaintiff's Advocate on 31.7.2006, wherein defendants 1 to 3 categorically denied the execution of Ex.P.3 and P.4 and also categorically denied the receipt of sale consideration of Rs.15 Lakhs from the plaintiff as shown in the alleged agreement of sale Ex.P.3. On the other hand, defendants 1 to 3 have specifically stated in the reply notice that the 1st defendant was involved in a criminal case and sons of the plaintiff helped the 1st defendant in getting bail in the said criminal case and at that point of time, the children of the plaintiff obtained the signature of 2nd and 3rd defendants on some blank bond papers stating that those are required to be produced before the Court for the purpose of release of the 1st defendant on bail. They have also categorically denied the fact that possession of the plaint schedule property was 43 O.S.8991/2006 delivered to the plaintiff by virtue of Ex.P.3 and on the other hand, claim that the defendants 2 and 3 are in possession of the suit property till the execution of the gift deed in favour of the husband of defendants 2 and 3 and also claim that after execution of the gift deed, the 1st defendant is in possession of the suit property.
54. It is also worth to mention at this stage itself that the legal notice Ex.D.11 was issued on 22.7.2006 and reply was issued as per Ex.D.12 on 31.7.2006, which also shows that there is no delay in replying the notice and in addition to that, the defendants put forth the circumstances under which Ex.P.3 agreement of sale and Ex.P.4 GPA came into existence.
55. Ex.D.13 is the postal receipt for having sent reply notice and Ex.P.14 is the served postal acknowledgement for having served reply notice.
56. Ex.D.15 is the sanctioned plan approved by the BBMP authorities in favour of the 1st defendant to put up construction in the very same property bearing site 44 O.S.8991/2006 No.2/1, 3rd Main Road, Kempaiah Block, Jayamahal ward No.92, Bengaluru.
57. Ex.D.16 is the registered gift deed dated 13.2.2006 said to have been executed by defendants 2 and 3 in favour of their husband i.e. the 1st defendant in respect of the very same property, which is morefully shown in the plaint schedule. On perusal of Ex.D.16 the gift deed, the possession of the property, which is morefully shown in the schedule of Ex.D.1 is shown to have delivered in favour of the Donee i.e. the 1st defendant in this case.
58. The power of attorney holder of the plaintiff, who is examined as PW.1, has reiterated the plaint averments. However PW.1 in the cross-examination admitted that he knows the 1st defendant since from the date of purchasing the suit property (appears to be six months prior to the alleged purchase of the suit property). A specific suggestion is made in the cross- examination of PW.1 by suggesting that to avoid customs duty, he has sent 21,800 US Dollars through 45 O.S.8991/2006 the 1st defendant and this suggestion is denied by PW.1 in his cross-examination. However PW.1 in his cross-examination admitted that the 1st defendant was caught in the Air-port for carrying 21,800 US Dollars and admitted that the said amount was seized by the Customs Authorities. He specifically admitted in his cross-examination that the Customs Officials also issued show-cause notice to him, his brother and on the 1st defendant. This aspect is also clear from the document i.e. produced by the defendants as per Ex.D.1. PW.1 also admitted that after enquiry, the said 21,800 US Dollars were confiscated by the Government and penalty was also imposed on him, his brother and on 1st defendant. Though PW.1 in his cross-examination goes to the extent of saying that in the appeal, the said order was quashed and he has no impediment to produce the said order copy before this Court, but no such order copy is produced by the plaintiff for the reasons best known to him.
59. PW.1 in his cross-examination denied the suggestion that under the pretext of giving the surety 46 O.S.8991/2006 to the 1st defendant, he has obtained the signatures of defendants 2 and 3 on blank bond papers and also denied the suggestions that under the said pretext, he has received the original sale deed from 2nd and 3rd defendants i.e. Ex.P.2. He also admitted that the 1st defendant was arrested on 25.3.2004 (from the contents of Ex.D.2, the 1st defendant was arrested on 26.3.2004 and he was released on bail on the same day). A specific suggestion is also made in his cross- examination by suggesting that to recover this 21,800 US Dollars, he has misused the blank bond papers and got the property transferred in the name of the plaintiff and this suggestion is denied by PW.1 in the cross- examination.
60. With regard to the alleged execution of Ex.P.3 and Ex.P.4 and with regard to passing of sale consideration of Rs.15 Lakhs is concerned, PW.1 in his cross-examination at page-6 goes to the extent of saying that the sale agreement was prepared in his office by an Advocate in presence of defendants 1 to 3 47 O.S.8991/2006 and the said sale deed (sale agreement) was already typed when it was brought to his office. He goes to the extent of saying that the said agreement was got typed and got embossed in the Sub-Registrar office and then the parties have signed the said agreement in his office. However Ex.P.3 and Ex.P.4 both reveals the fact that the said stamp paper were purchased in the office of Sub-Registrar at Bellur. He also goes to the extent of saying that his Advocate himself got embossed the sale agreement in the Sub-Registrar office, but he never stated in which Sub-Registrar office the said stamp paper was embossed by the concerned Advocate.
61. PW.1 in his cross-examination also stated that on the same day, GPA Ex.P.4 was also executed and stated that he was not present when GPA was executed and also stated that he do not know who were present at the time of execution of GPA and further stated that he do not remember at what time the said GPA was executed. This evidence of PW.1, in 48 O.S.8991/2006 my opinion, clearly establishes the fact that PW.1 has not deposed the true fact before the Court, but on the other hand deposing before the Court by suppressing all the material facts. Later PW.1 in the cross- examination admitted that the stamp papers of sale agreement Ex.P.3 were embossed at Bellur, Nagamangala Taluk and power of attorney was also embossed at Sub-Registrar office, Bellur. It is worth to mention at this stage itself that both the parties are the residents of Bengaluru, property is also situated in Bengaluru and for what purpose, stamp papers Ex.P.3 and Ex.P.4 were purchased at Bellur and why it was embossed in the Sub-Registrar office at Bellur has not satisfactorily explained by the plaintiff either in the plaint or in his chief examination affidavit. He goes to the extent of saying that when his mother obtained the GPA, at that time khatha was not made out in the name of the 2nd and 3rd defendants. When under Ex.P.4 the plaintiff was authorised to appear before the concerned BMP office to change the khatha, but the plaintiff has not made any efforts to get the khatha 49 O.S.8991/2006 transferred to the name of 2nd and 3rd defendants up to the year 2006, though the alleged Ex.P.3 and Ex.P.4 came into existence on 20.3.2004.
62. PW.1 in his cross-examination goes to the extent of saying that the plaintiff has paid the entire sale consideration of Rs.15 Lakhs at one stretch to the defendants 1 to 3. As discussed earlier, no document has been produced to show that infact the plaintiff was in possession of the said Rs.15 Lakhs as on the date of execution of Ex.P.3 and P.4. Again he goes to the extent of saying that he do not remember exactly on which date the plaintiff paid Rs.15 Lakhs and also stated that the said amount was paid when the defendants executed GPA and sale agreement in his office. He also stated that they have arranged Rs.15 Lakhs by drawing some money from the bank and by borrowing some money from his relatives and friends. This in my opinion is only an improvement in the evidence of PW.1 and these facts are not pleaded in the plaint and not produced any document in this 50 O.S.8991/2006 regard. He also admitted that he has not produced Bank Statement to show that they have withdrawn money from the Bank to pay the sale consideration to the defendants 2 and 3.
63. The plaintiff later is examined as PW.2, wherein she goes to the extent of saying that she has got cash of Rs.5 Lakhs with her in respect of the retirement benefit of her husband and further stated that she has got encashed a sum of Rs.5 Lakhs from the account of his son by name Zubairulla Sharieff on 20.3.2004 and further stated that she got hand loan of Rs.2,50,000/- from Asif Mehkri and further availed loan of Rs.2,50,000/- from one Jameeluddin on 20.3.2004. This aspect admittedly has not been pleaded nor proved by the plaintiff by producing cogent and convincing documentary evidence before the Court.
64. PW.2 in her cross-examination goes to the extent of saying that on 20.3.2004 agreement of sale was executed in the afternoon in the office of her son and she goes to the extent of saying that by that time, the 51 O.S.8991/2006 document was already prepared. She further goes to the extent of saying that the defendants, plaintiffs had been to the Advocate's office to get the power of attorney and also stated that all of them have affixed their signatures in the register maintained by the Notary and further stated that she has no impediment to examine the said notary. But the said Notary is not examined and the said register maintained by the Notary is also not summoned from the concerned Advocate. She also admitted that she has handed over the amount to the hands of the 1st defendant and also admitted that she has no impediment to issue cheque for the said sum. She admitted in her cross- examination that she had no document to show that she has got cash to an extent of Rs.5 Lakhs, which she got from the retirement benefit of her husband. She also admitted that she has no impediment to issue cheque instead of drawing the amount from the bank. She further admitted that she had no document to show that she had repaid the loan which she borrowed from PW.3 and PW.4.
52 O.S.8991/2006
65. PW.2 never stated in her chief examination affidavit that who infact were present on the date of execution of Ex.P.3 and Ex.P.4. She never spoken to in specific term as to which of the witnesses were present when Ex.P.3 and Ex.P.4 were executed, since she is the better witness to say on the said aspect.
66. They have also examined two more witnesses as PW.3 and PW.4 for the limited purpose to show that the plaintiff availed a sum of Rs.2,50,000/- each as hand loan from PW.3 and PW.4 and their evidence in my opinion, is not trust worthy nor worth to be believed for the simple reason that virtually there is no document for having borrowed the amount nor for having repaid the loan amount to PW.3 and PW.4.
67. The 3rd defendant is examined as DW.1, wherein she has reiterated the written statement averments. However DW.1 in her cross-examination admitted her signatures in Ex.P.3 as per Ex.P.3(a) to P.3(j). She also admitted the signature of her sister i.e. the 2nd defendant in this case as per Ex.P.3(i) to P.3(P). She 53 O.S.8991/2006 also admitted the signature of her husband in Ex.P.3 as per Ex.P.3(q). She denied the suggestion that she along with her sister have executed agreement of sale in favour of the plaintiff as per Ex.P.3. She also denied the execution of Ex.P.4 GPA along with her sister in favour of the plaintiff on 20.3.2004. DW.1 denied the suggestion that her husband also affixed his signature in Ex.P.4. She also denied the suggestion that she handed over Ex.P.2, Ex.P.5 to P.7 to the hands of the plaintiff on the very same day when she executed Ex.P.3 and P.4 in favour of the plaintiff. She also admitted that she has not taken any legal action against the plaintiff to get back those documents. She denied the suggestion that she put her signature in the document on 20.3.2004, but stated that she might have put her signature on 24th or 25th of March 2004.
68. Merely because DW.1 admitted her signatures in Ex.P.3, in my opinion does not amount to admission of the contents of Ex.P.3 and Ex.P.4.
54 O.S.8991/2006
69. The 1st defendant is examined as DW.2, wherein he has reiterated the written statement averments in his chief examination affidavit. DW.2 in his cross- examination admitted the signature in Ex.P.3 as per Ex.P.3(q). He also admitted in his cross-examination that he was arrested on 25.3.2004 and further admitted that one Zakirulla Sherieff brought one Kaleemulla and made the said Kareemulla to offer bail for his release on bail. He also admitted the signatures of his wives i.e. 2nd and 3rd defendants in Ex.P.3 and Ex.P.4. He also admitted in his cross-examination that even after filing of this suit, he has not taken any legal action against the plaintiff stating that he has not executed the agreement of sale Ex.P.3 and GPA Ex.P.4 nor to get back the agreement of sale Ex.P.3 in question.
70. On careful perusal of the evidence available on record, the relationship between the defendants is not in dispute. The 2nd and 3rd defendants both are wives of the 1st defendant. Ex.D.10 also reveals the fact that 55 O.S.8991/2006 the 3rd defendant is an employee and she is working as a teacher in the Government School. It is an undisputed fact that defendants 2 and 3 jointly purchased the plaint schedule property by virtue of sale deed Ex.P.2 dated 15.9.2003. Evidence available on record shows that plaintiff claims the plaint schedule property by virtue of Ex.P.3 agreement of sale and the alleged GPA Ex.P.4 both dated 20.3.2004.
71. It is the specific case of the plaintiff that she paid sale consideration of Rs.15 Lakhs to the defendants 1 to 3 under Ex.P.3 before the witnesses of Ex.P.3. On careful perusal of Ex.P.3 the alleged agreement of sale, there is no recital in Ex.P.3 to show as to how payment was made whether by way of cash or cheque. None of the attestor of Ex.P.3 is examined by the plaintiff for the reasons best known to the plaintiff or legal heirs of the plaintiff. Defendants 1 to 3 in their written statement so also in the evidence of DW.1 and DW.2 stated that they have not executed Ex.P.3 and Ex.P.4 nor received any sale consideration. In view of this 56 O.S.8991/2006 defence, the burden lies heavily on the plaintiff to prove execution of Ex.P.3 and Ex.P.4 both alleged dated 20.3.2004.
72. Evidence of PW.2 shows as if parties to Ex.P.3 and Ex.P.4, attestors/witnesses had been to Sub- Registrar office to execute Ex.P.3 and Ex.P.4. Ex.P.3 and Ex.P.4 stamp papers were purchased at Sub- Registrar office, Bellur (Nagamangala Taluk), but not at Bengaluru. The parties to Ex.P..3 and Ex.P.4 are the residents of Bengaluru and plaint schedule property is situated at Bengaluru. PW.1 and PW.2 never stated that they had been to Bellur to get Ex.P.3 and Ex.P.4. Ex.P.3 and Ex.P.4 both are unregistered documents. The documents Ex.P.3 and Ex.P.4 came into existence on 20.3.2004. Basically to show that plaintiff got Rs.15 Lakhs as on the date of Ex.P.3, no convincing documents are produced except a Pass Book Ex.P.10, Ex.P.10(a).
73. The defence of defendants 1 to 3 and evidence of DW.1 and DW.2 shows that 1st defendant was involved 57 O.S.8991/2006 in criminal case for having possessed 21,800 US Dollars, he was arrested on 26.3.2004 and he was enlarged on bail with conditions on 26.3.2004 as per recital of Ex.D.1 and D.2. Ex.D.1 is the show-cause notice issued to plaintiff No.1(b), plaintiff No.1(c) and 1st defendant. The defence of defendants 1 to 3 is that to get release the 1st defendant on bail, their signatures were obtained on blank bond papers and later Ex.P.3 and Ex.P.4 were fabricated by the legal heirs of the deceased plaintiff with their mother i.e. the plaintiff. The deceased plaintiff is examined as PW.2, wherein she never stated in her evidence as to who were present as on the date of execution of Ex.P.3 and Ex.P.4 and she never produced any convincing documents to show that as on 20.3.2004, she was in possession of Rs.15 Lakhs nor paid Rs.15 Lakhs to the defendants.
74. If really Ex.P.3 and Ex.P.4 came into existence on 20.3.2004 in the manner projected by the plaintiff, there must have been a reference of Ex.P.3 in Ex.P.4 58 O.S.8991/2006 and there must have been reference of Ex.P.4 in Ex.P.3. There is no reference of Ex.P.3 alleged agreement of sale in the alleged GPA Ex.P.4. The evidence of PW.1 and PW.2 is not consistent and consistent enough to prove due execution of Ex.P.3 and Ex.P.4 nor to prove huge payment of Rs.15 Lakhs that too in 2004 i.e. on 20.3.2004. There are major contradictions in the evidence of PW.1 and PW.2 both are the son and mother. PW.2 never stated in her evidence as to who executed Ex.P.3 and Ex.P.4, who were present as on the date of execution of alleged agreement of sale Ex.P.3 and GPA Ex.P.4. As PW.2 is the holder of Ex.P.3 and Ex.P.4, it is for her to say the details of due execution of Ex.P.3 and Ex.P.4 and with regard to payment of Rs.15 Lakhs in the manner projected by the plaintiff in the plaint.
75. Nothing prevented the plaintiff to pay Rs.15 Lakhs through cheque or DD. No prudent man will pay Rs.15 Lakhs in 2004 in cash and even there is no reference in Ex.P.10 with regard to drawing of Rs.15 59 O.S.8991/2006 Lakhs or payment of Rs.15 Lakhs to defendants. New theory is also projected in the evidence of PW.2 that she got Rs. 5 Lakhs with her as she got the same towards the retirement benefit of her husband. This fact is not pleaded by her in the plaint nor produced any documents in this regard. The plaintiff also relied upon the evidence of PW.3 and PW.4 to show as if she availed hand loan of Rs.2,50,000/- each from PW.3 and PW.4. This is really a make believe theory as cross-examination of PW.3 and PW.4 shows that they have no documents to show that they paid Rs.2,50,000/- each to the plaintiff and further to show that plaintiff repaid the said sum to PW.3 and PW.4.
76. DW.1 and DW.2 have specifically stated in their written statement and in their evidence as to how and under what circumstances Ex.P.3 and Ex.P.4 came to be executed and how the signatures of defendants obtained on Ex.P.3 and Ex.P.4. Admission of the signatures of DW.1 and DW.2 in Ex.P.3 and Ex.P.4 does not amount to due execution of Ex.P.3 and Ex.P.4 by defendants i.e. defendants 2 and 3. To falsify the 60 O.S.8991/2006 fact that the 3rd defendant was one of the attestors to Ex.P.3 and Ex.P.4, defendants produced Ex.D.10 the certified copy of the attendance register extract to show that the 3rd defendant was on duty i.e. on 20.3.2004. There is no effective cross examination of DW.1 with regard to the entries found in Ex.D.10.
77. The learned counsel for the plaintiff in the written arguments also highlighted the fact that 1st defendant admitted the receipt of Rs.15 Lakhs from the plaintiff in document Ex.P.10 and thereby contended that plaintiff proved due execution of agreement of sale Ex.P.3 on 20.3.2004. This document Ex.P.10 is only the certified copy of the affidavit said to have been sworn to by the 1st defendant Syed Mahaboob Syed Kareem on 31.3.2004 and this stamp paper was shown to have purchased on 31.3.2004, which came into existence subsequent to the date of Ex.P.3 and Ex.P.4 and after release of the 1st defendant on bail just to over come the statement made by the 1st defendant before the Customs Authorities while he was in custody, that too 61 O.S.8991/2006 at the time when the 1st defendant disclosed/implicated the names of the sons of the plaintiff with respect to 21,800 US Dollars seized by the Customs Officials from the alleged possession of the 1st defendant.
78. This affidavit Ex.P.10 appears to have been sworn to by the 1st defendant at the instance of plaintiff No.1(b) and plaintiff No.1(c) i.e. the children of the deceased plaintiff just to save their skin as the 1st defendant disclosed their names before the Customs Officials at the time when US Dollars were seized from the 1st defendant.
79. It is also the specific case of the plaintiff that the sale consideration of Rs.15 Lakhs was paid by the plaintiff to the defendants under Ex.P.3, the alleged agreement of sale, but not under Ex.P.10. Ex.P.10 in my opinion will never help the plaintiff in any way either to prove due execution of Ex.P.3 the alleged agreement of sale and Ex.P.4 the alleged GPA or to prove the payment of Rs.15 Lakhs being sale consideration under Ex.P.3.
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80. Merely because there was inaction on the part of defendants 1 to 3 in not issuing legal notice and in not taking any legal action against the plaintiff stating that Ex.P.3 and Ex.P.4 were fabricated by the plaintiff, in my opinion, is no ground to decree the suit of the plaintiff, since it is the plaintiff, who approached the Court seeking the relief of specific performance of contract based on Ex.P.3 - agreement of sale and for cancellation of the gift deed Ex.D.16 and as such the plaintiff has to prove their case independently. The weakness in the case of the defendants cannot be treated as a ground to decree the suit of the plaintiff either for the relief of specific performance or for the relief of cancellation of the gift deed.
81. Though the plaintiff projected their case in the plaint, so also in their evidence that the possession of the plaint schedule property was delivered to her under Ex.P.3, but except the recital in Ex.P.3, no convincing documents are produced. So, all these facts clearly establishes the fact that the plaintiff has not 63 O.S.8991/2006 approached the Court with clean hands and filed this suit by suppressing all the material facts and also by projecting their case as if defendants 1 to 3 executed Ex.P.3 and Ex.P.4.
82. The khatha records that were made out in the name of the 1st defendant in respect of the plaint schedule property is also not questioned by the plaintiff before the competent authorities. The 1st defendant and the legal heirs of the plaintiff are not strangers, but they known to each other much prior to came into existence of Ex.P.3 and Ex.P.4.
83. Under Ex.P.3, sale price is shown as Rs.15 Lakhs. The entire sale consideration is shown to have paid. When such being the case, there was no impediment for the plaintiff to get the sale deed executed in her favour and to get the sale deed registered instead of getting Ex.P.3 and Ex.P.4 in her favour.
84. Even under Ex.P.4 the alleged GPA also, the holder of the GPA i.e. the plaintiff in this case was also 64 O.S.8991/2006 empowered to get the khatha transferred in respect of the suit property. The plaintiff never made any efforts either to get the khatha transferred in the name of the 2nd and 3rd defendants or to get the sale deed registered in her favour up to 2006, though Ex.P.3 and Ex.P.4 came into existence on 20.3.2004.
85. Since the plaintiff failed to prove the due execution of Ex.P.3 and Ex.P.4 and failed to prove the payment of Rs.15 Lakhs, it probablises the defence of defendants 1 to 3 that Ex.P.3 and Ex.P.4 are fabricated and came into existence in the manner and circumstances stated by the defendants in their written statement so also in their evidence.
86. The plaintiff virtually failed to prove the due execution of Ex.P.3 agreement of sale and Ex.P.4 GPA. The plaintiff also failed to prove that she got Rs.15 Laksh in her possession as on the date of Ex.P.3 and Ex.P.4, i.e. on 20.3.2004. The plaintiff also failed to prove that they paid Rs.15 Lakhs to the defendants under Ex.P.3 the alleged agreement of sale. When the 65 O.S.8991/2006 plaintiff failed to prove the due execution of Ex.P.3 and Ex.P.4 and payment of sale consideration under Ex.P.3, in my opinion, the question of declaring Ex.D.16 gift deed as null and void does not arise at all.
87. Also perused the decisions relied upon by the learned counsel for the plaintiff. These decisions in my humble view will not help the plaintiff in any way for the simple reason that though the defendants admitted their signatures in Ex.P.3, but they explained as to the circumstances which forced the defendants to put their signatures in Ex.P.3 and Ex.P.4. In addition to that, the plaintiff thoroughly failed to examine any of the attestors of Ex.P.3 to prove due execution of Ex.P.3 and further to prove the payment. The evidence of PW.1 to PW.4 in my opinion, is not reliable nor worth for belief so far it relates to payment of Rs.15 Lakhs to the defendants on 20.3.2004.
88. Also perused the decisions relied upon by the learned counsel for the defendants reported in AIR 66 O.S.8991/2006 2002 MADRAS 131, wherein the Hon'ble High Court of Madras at head note-B held as follows:
(B) Specific relief Act (47 of 1963), S.20- Discretion of Court - Plea by plaintiff that he had paid a huge sum of Rs.8.05 Lakhs as part consideration for sale of property in question - No receipts obtained by him from defendant nor did he ask for original documents regarding property - No material placed before Court that plaintiff had financial source or capacity to make said installments -
Genuineness of deed of agreement questioned by defendant - Non examination of at least one of witnesses who witnessed execution of agreement in question - No explanation for, put forth by plaintiff - Plaintiff not entitled for specific performance of agreement.
(Relevant para is para-12)
89. The ratio and the principles laid down in the said decision, in my humble view, is applicable to the case on hand.
90. Hence on careful perusal of the material available on record, the plaintiff thoroughly failed to prove that the defendants agreed to sell the suit property for sale consideration of Rs. 15 Lakhs and also failed to prove that defendants 2 and 3 executed sale agreement on 67 O.S.8991/2006 20.3.2004. The plaintiff also failed to prove the fact that she has paid entire sale consideration of Rs.15 Lakhs to the defendants under Ex.P.3. The plaintiff also failed to prove that the gift deed dated 13.2.2006 executed by defendants 2 and 3 in favour of 1st defendant is null and void. Accordingly I answer issue Nos. 1 to 3 in the 'negative'.
91. Issue No.4: Defendants also taken the defence contending that the suit is bad for non-joinder of necessary parties. Admittedly no relief is sought for by the plaintiff against BBMP authorities. But the plaintiff has only sought for the relief with regard to cancellation of khatha that was registered in the name of the 1st defendant. As such in my opinion, the BBMP authorities are not the proper and necessary parties in this case. Accordingly I answer issue No.4 in the 'negative'.
92. Issue No.5: The defendants also taken the defence contending that the suit is not properly valued and the Court paid is insufficient.
68 O.S.8991/2006
93. The main relief sought for by the plaintiff is specific performance of contract based on Ex.P.3 and she also sought for consequential relief of declaration to declare that the gift deed Ex.D.16 executed by defendants 2 and 3 in favour of 1st defendant on 13.2.2006 is null and void.
94. The valuation slip produced by the plaintiff along with the plaint also disclosed the fact that the plaintiff valued the subject matter of the suit under Section 7(2) r/w section 40 of the Karnataka Court Fees and Suit Valuation Act for the main relief is concerned i.e. with regard to the relief of specific performance is concerned for Rs.15 Lakhs and accordingly paid the Court fee of Rs.87,125/-, which in my opinion, is sufficient and proper.
95. In addition that, in respect of the consequential relief is concerned, no consideration amount is shown in the alleged gift deed said to have been executed between defendants 1 to 3 interse on 13.2.2006, which is marked as per Ex.D.16. This aspect has also been 69 O.S.8991/2006 highlighted by the learned counsel for the plaintiff in the written arguments. As such, in my opinion, the suit is properly valued and the Court fee paid is sufficient. Accordingly I answer issue No.5 in the 'affirmative'.
96. Issue No.6: The plaintiff also sought for the relief of direction to the Corporation Authorities to cancel the khatha registered in the name of the 1st defendant.
97. In respect of this relief is concerned, the form and forum left open for the plaintiff is different and in this regard she has to approach BBMP instead of approaching the Civil Court. As the plaintiff failed to prove issue Nos. 1 to 3, the plaintiff is not entitled for the relief of declaration seeking direction to the Corporation Authorities to cancel the khatha registered in the name of the 1st defendant. Accordingly I answer issue No.6 in the 'negative'.
98. Issue No.7: The plaintiff failed to prove that the defendants agreed to sell the suit property for sale 70 O.S.8991/2006 consideration of Rs.15 Lakhs and failed to prove that defendants 2 and 3 executed agreement of sale on 20.3.2004. The plaintiff thoroughly failed to prove that she has paid entire sale consideration of Rs.15 Lakhs to the defendants on 20.3.2004. The plaintiff also failed to prove that the gift deed executed on 13.2.2006 by defendants 2 and 3 in favour of 1st defendant is null and void and as such plaintiff is not entitled for any of the reliefs as prayed. Accordingly I answer Issue No.7 in the 'negative'.
99. Issue No.8: In view of my findings on Issue Nos. 1 to 7, I proceed to pass the following:
ORDER The instant suit filed by the plaintiff against the defendants is hereby dismissed. No order as to costs.
(Dictated to the Judgment Writer, computerized by her, then corrected, signed and pronounced by me in the Open Court on this the 28th day of March, 2016).
(S.SRIDHARA) XXIV ADDL.CITY CIVIL & SESSION JUDGE, BANGALORE CITY.71 O.S.8991/2006
ANNEXURE List of witnesses examined for the plaintiffs:
P.W.1: Zubair Ulla Sharief P.W.2: Mushtary Begum. P.W.3: Asif Mehkri P.W.4: Syed Sha Jameeluddin.
List of documents marked for the plaintiffs:
Ex.P.1: Power of attorney dated 18.6.2008.
Ex.P.2: Sale deed dated 15.9.2003. Ex.P.3: Agreement of sale dated 20.3.2004. Ex.P.4: Power of attorney dated 20.3.2004. Ex.P.5: Notice issued by BBMP. Ex.P.6: Certificate issued by the Corporation. Ex.P.7: Assessment register extract. Ex.P.8&9: Tax paid receipts. Ex.P.10: Current account pass book pertaining to
Sherief in Amanath Co-operative Bank. Ex.P.10(a): Relevant entry in Ex.P.10.
List of witnesses examined for the defendants:
DW.1: Smt.Hameeda Banu Patan DW.2: Syed Mehaboob.
List of documents marked for the plaintiff:
Ex.D.1: Notice issued by Customs.
Ex.D.2: Order passed by Addl. Commissioner,
Customs Department.
Ex.D.3: Copy of tippani regarding change of
khatha.
Ex.D.4: Special notice.
Ex.D.5: Copy of property sketch.
Ex.D.6&7: Khatha extract and khatha certificate.
Ex.D.8&9: Tax paid receipts.
Ex.D.10: Attendance register of the school.
Ex.D.11: Legal notice issued by Advocate for
72 O.S.8991/2006
plaintiff.
Ex.D.12: Reply notice issued to Ex.D.11. Ex.D.13: Postal receipts.
Ex.D.14: Postal acknowledgement. Ex.D.15: Approved plan.
Ex.D.16: Gift deed dated 13.2.2006.
(S.SRIDHARA) XXIV ADDL.CITY CIVIL & SESSION JUDGE, BANGALORE CITY.