Bangalore District Court
Dr.Javeed Ahamed vs Mrs. Shataj Khan on 12 August, 2015
IN THE COURT OF XL. ADDL.CITY CIVIL& SESSIONS
JUDGE (CCH-41) AT BENGALURU.
Dated this the 12th day of August 2015.
PRESENT
SRI.JINARALAKAR. B.L.
B.A.,LL.B. (Spl.)
XL.Addl. City Civil & Sessions Judge, Bengaluru.
O.S.NO.4332/2005
Plaintiffs : 1. Dr.Javeed Ahamed,
S/o. M.A.Rasheed,
Aged about 56 years,
2. Mrs.Kursheed Begum,
W/o. Late M.A.Rasheed,
Aged about 87 years,
Both residing at No.5644, Avenida
Classica, Palmdale, California, USA-
93551.
Rep. by their P.A. Holder-
Mrs.Zareen Taj Begum,
W/o. Dr.Syed Sebgathullah,
Aged about 61 years,
R/o. No.302/2, 23rd Cross,
6th Block, Jayanagar,
Bengaluru-82.
Plaintiff No.2 is dead by her LR-
2(a) Mrs.ZareenTaj Begum,
W/o. Dr.Syed Sebgathullah,
Aged about 65 years,
R/o. No.302/2, 23rd Cross,
6th Block, Jayanagar,
Bengaluru-82.
(By Sri.L.S.Venkatakrishna,
Advocate.)
2 OS.4332/2005
AND:
Defendants : 1. Mrs. Shataj Khan,
W/o. Habeebula Khan,
Aged about 45 years,
R/o. No.148, Block-4, 2nd Phase,
3rd Stage, Banashankari
Extension, Bengaluru.
2. The Commissioner,
Corporation City of Bengaluru,
N.R. Square,
Bengaluru-2.
(D-1-By Sri.J.T.Rajan, Advocate.)
(D-2-By Sri.N.R.Jagadeeswara,
Advocate.)
***
i) Date of Institution of
the suit.
09.06.2005
ii) Nature of the suit. Possession, Mandatory
Injunction & Mesne profits.
iii) Date of the
commencement of
26.10.2007
recording of evidence.
iv) Date on which the
judgment was
12.08.2015
pronounced.
v) Total Duration Year/s Month/s Day/s
10 01 23
***
3 OS.4332/2005
JUDGMENT
The plaintiffs have filed this suit against the defendants for possession based on title against the 1st defendant in respect of the suit schedule property
- All that piece and parcel of the property bearing No.148, Block No.4, 2nd Phase, 3rd Stage, Banashankari Extension, Bengaluru, measuring East to West 12.3/2 mtrs., and North to South 21.60+22.35/2 mtrs., with the building comprising ground and first floor in the main portion and ground and first floor in the outhouse, the building having been constructed in the year 1990 and bounded on East by: Site No.147, West by: Site No.149, North by: Site No.100 and 104 and South by: Road with a direction to quit and deliver vacant possession of the same, Mandatory Injunction directing the 2nd defendant to revoke / cancel the Khata / mutation of the plaint schedule property entered in the name of 1st defendant with necessary direction to transfer 4 OS.4332/2005 Khata in the name of the 1st plaintiff in the registers of BBMP and for mesne profits and costs, etc. .2. The averments of the plaint in brief are that:
The 1st plaintiff is the son and 1st defendant is the daughter of the 2nd plaintiff. The 2nd plaintiff is the absolute owner of the schedule premises. The vacant site on which the schedule property is constructed was allotted to the 2nd plaintiff by the BDA followed by Lease-cum-Sale Agreement dated 10.06.1983 and by virtue of a registered Sale Deed dated 30.07.1993 and thereby the BDA conveyed the absolute right, title and interest in favour of the 2nd plaintiff.
The 1st plaintiff is the only son of the 2nd plaintiff, who is a qualified medical practioner having obtained MBBS degree from Bengaluru Medical College and went to USA, in the year 1999 to prosecute his higher studies in Rheumatology and 5 OS.4332/2005 Osteoporosis and presently, he is practicing at Lancaster, California, USA as a specialist consultant.
The plaint schedule property is a residential building comprising a main house and a small house, which was in occupation of 2nd plaintiff and she has constructed the plaint schedule property during 1990-91, with the funds provided by the 1st plaintiff and supplemented by her own savings. The 2nd plaintiff has also raised a house building loan by depositing the Title Deeds with the Bharath Co- operative Bank Ltd., on 10.05.1995 for the purpose of creation of equitable mortgage, which had been duly registered. The 2nd plaintiff thereafter, discharged the mortgage by paying the debt to the said Bank and accordingly, the equitable mortgage was discharged on 23.03.1998 and evidenced by the Encumbrance Certificate. The Khata of the plaint schedule property has been transferred in the name of 2nd plaintiff and taxes were being paid by her. 6 OS.4332/2005
The 1st plaintiff has a son by name Junaid Ahmed from his first wife and the said child was both physically and mentally challenged spastic child who needed constant attention and care. When the 1st plaintiff went to USA in the year 1999, he had left his son under the care and protection of his sister-the 1st defendant, who stood in a fiduciary relationship and agreed to take care of him. The 2nd plaintiff after constructing the plaint schedule property was exercising the rights of ownership as absolute owners thereof. The 1st defendant did not have a house to stay in Bengaluru and her husband-Habibulla was employed in Saudi Arabia for some time while the 1st defendant was a house wife staying in Bengaluru. During this period, the 1st defendant offered her services to look after the physically handicapped child of the 1st plaintiff. The 1st defendant impressed upon the plaintiffs that she would not only take care of the child, but also the 2nd plaintiff who was afflicted with the cancer of the chest. The 1st 7 OS.4332/2005 defendant requested the plaintiffs that she is permitted to stay in the ground floor of the outhouse portion of the schedule property, she would extend all her co-operation for taking care of 2nd plaintiff and also Junaid Ahmed.
The 2nd plaintiff after considerable deliberations and consulting the 1st plaintiff agreed that the 1st defendant shall stay in the outhouse premises as a permissive occupant and under such compelling reasons and family circumstances, the 1st defendant was permitted to stay in the outhouse premises by the 2nd plaintiff. With this arrangement and understanding, the 1st defendant came to live in the ground floor of the outhouse portion permissively. Though the 1st defendant for sometime made a show of taking care of 2nd plaintiff and Master Junaid Ahmed, but in reality did not in the least have any sincere commitment to the understanding arrived at between herself and the plaintiffs. With the passage 8 OS.4332/2005 of time, the greed and avarice of 1st defendant started surfacing in her not taking care of 2nd plaintiff and started putting a lot of pressure on her mother- the 2nd plaintiff to settle the plaint schedule property in her name as she did not have a residence of her own in the Bengaluru City.
In the year 1988, the 2nd plaintiff had to leave for USA and joined the 1st plaintiff for treatment of cancer and requested her eldest daughter- Mrs.Zareen Taj Begum to take care of the plaint schedule property and its upkeep by authorizing her to collect rents from the tenants of first floor of the outhouse premises. The 1st defendant who was all along thinking and planning her strategy to usurp the entire plaint schedule property was very much disappointed at the arrangements made by her mother handing over possession of the plaint schedule property to her eldest sister and started hatching plans with the assistance of her husband. 9 OS.4332/2005
In the meantime, the 2nd plaintiff returned from USA after undergoing the surgical treatment in the month of January 1999. The 1st defendant taking advantage of the absence of 1st plaintiff started putting again unreasonable demand for settlement of the plaint schedule property in her name. The 2nd plaintiff taking pity on 1st defendant-her daughter with the fond hope that she would look after her in old age, agreed to bequeath the outhouse portion (ground floor only) to her provided, she stood by her promise to take care of her.
The 1st defendant also prevailed upon her mother that she would change her behavior and take care of 2nd plaintiff. The 2nd plaintiff was moved by the request made by the 1st defendant and after a lot of deliberations and consultation with her son-1st plaintiff, she executed a registered Will dated 03.03.1999 bequeathing the main / front portion of 10 OS.4332/2005 the plaint schedule property in favour of the 1st plaintiff as he had invested the entire amount for the acquisition and construction of the plaint schedule property and the outhouse portion (ground floor) to the 1st defendant, by reserving her right to sell, alienate or dispose the plaint schedule property or any portion thereof in her discretion. The 1st defendant after having come to know about the execution of the Will by the 2nd plaintiff, she became extremely angry at the instigation of her husband as she felt that the entire property should have been bequeathed in her favour by the 2nd plaintiff.
The 1st defendant conspiring with the evil intention to dispossess the 2nd plaintiff from the plaint schedule property started ill treating her mother and even started preventing her eldest sister-Mr.Zareen Taj Begum and her husband from visiting the schedule property. The 1st defendant who had taken a hostile attitude against the 2nd 11 OS.4332/2005 plaintiff, started interfering with the peaceful possession and enjoyment of the plaint schedule property. In the meanwhile, the plaintiffs had to leave India on 09.08.1999 and therefore, the 2nd plaintiff executed a GPA, in favour of her eldest daughter-Mrs.Zareen Taj Begum to take care of the plaint schedule property. The 1st defendant having come to know that the plaintiffs had left India wanted to take illegal possession of the front portion of the plaint schedule property and therefore, the eldest daughter-Mrs.Zareen Taj Begum as GPA Holder immediately instituted a suit against the 1st defendant for the relief of permanent injunction in OS.No.8015/1999 and obtained an exparte order of temporary injunction. The 1st defendant appeared and contested the proceedings, the order of temporary injunction granted exparte came to be confirmed by the City Civil Judge on 04.01.2000. The 1st defendant preferred a Miscellaneous First Appeal in MFA No.915/2000 before the Hon'ble High 12 OS.4332/2005 Court challenging the said order and said MFA came to be dismissed on 28.05.2002 thereby confirming the order of temporary injunction.
The 2nd plaintiff ultimately realized that the 1st defendant had taken the hostile attitude towards the plaintiffs would spare no efforts to usurp the entire plaint schedule property and she was also compelled to file a private complaint against the 1st defendant as she had committed trespass of the main portion of the schedule property inspite of order of temporary injunction in PCR No.19/2000 on the file of 1st ACMM at Bengaluru. The 1st defendant also joined hands with the tenant-Mr.Nithin Agarwal to deprive the 2nd plaintiff from collecting rents in respect of first floor of the outhouse portion of the plaint schedule property. The 2nd plaintiff represented by her eldest daughter Mrs.Zarin Taj Begum also compelled to file a HRC No.1046/1999 on the file of Small Causes Judge, Bengaluru City (SCCH No.8) 13 OS.4332/2005 and the 1st defendant filed an application seeking to implead herself as necessary party on the ground that she is in possession of the first floor of the outhouse portion of the schedule property. The 2nd plaintiff became convinced that the 1st defendant was out to create fabricate documents to somehow lay a false claim and having undergone all kinds of insults, insinuations at the hands of the 1st defendant, she took the bold decision to settle the plaint schedule property in favour of her only son-the 1st plaintiff, who contributed all funds for acquisition of the plaint schedule property and she instructed eldest daughter-Mrs.Zarin Taj Begum who is her Power of Attorney Holder to execute an absolute Gift Deed in his favour in respect of the entire plaint schedule property, so that in the event of her death due to cancer, there should not be any complications in the matter of the devolution of interest. The 2nd plaintiff by executing the registered Gift Deed dated 28.01.2000 in favour of 1st plaintiff has expressly 14 OS.4332/2005 revoked the Will dated 03.03.1999 executed by her in favour of 1st plaintiff and 1st defendant. Even otherwise, the 2nd plaintiff who was the absolute owner of the plaint schedule property had reserved her right to either cancel, alter or modify the Will dated 03.03.1999. The 1st defendant committed trespass of the front portion of the schedule property, she was convinced that the 1st defendant did not deserve any consideration in the matter of any settlement in her favour in respect of the plaint schedule property. Therefore, the 2nd plaintiff was compelled to withdraw the suit on 10.02.2005 and also criminal prosecution filed against the 1st defendant as the suit filed in OS.No.8015/1999 had become infructuous and with a view to avoid unnecessary litigation and to file the suit along with her son-1st plaintiff for the comprehensive relief of decree of possession of the plaint schedule property on the basis of title with necessary declaration, even though the relief of declaration is not necessary as 15 OS.4332/2005 the illegal possession of the plaint schedule property in the hands of 1st defendant has become adverse to the interest of the plaintiffs. The 2nd plaintiff by way of abundant caution has joined the 1st plaintiff in the suit with a view to indemnify the 1st plaintiff's right, title and interest in the plaint schedule property by legal conveyance of the registered Gift Deed dated 28.01.2000.
The 2nd plaintiff has also filed detailed affidavit along with the suit affirming the fact that she has expressly revoked the Will dated 03.03.1999 and further affirmed that she has not executed any registered Gift Deed or any other document in the nature of HIBA in favour of 1st defendant as she apprehension that the 1st defendant would stoop to any level to fabricate documents in the nature of HIBA taking advantage of the fact that the parties are Muslims. The 2nd plaintiff has also affirmed in the affidavit that the 1st defendant has absolutely no 16 OS.4332/2005 right, title or interest in respect of the plaint schedule property and if she has got Khata transferred in her name in the Registers of BMP, the same is illegal, null and void and such an entry has to be necessarily cancelled immediately. By virtue of the registered Gift Deed dated 28.01.2000 executed by the 2nd plaintiff in favour of 1st plaintiff, he has become absolute owner of the plaint schedule property by exercising the rights of ownership. In view of trespass committed by the 1st defendant and being a false claim on the plaint schedule property, the plaintiffs have filed the suit for the relief of possession of title. Hence, the plaintiffs have filed the present suit.
.3. In pursuance of suit summons, defendants No.1 and 2 appeared through their respective counsels and filed written statement. During the pendency of the suit, 2nd plaintiff reported to be dead and plaintiff No.2(a) brought on record as her Legal 17 OS.4332/2005 Representative and plaint amended accordingly and filed amended plaint. The defendant No.1 after amendment of the plaint, has filed additional written statement.
.4. The 1st defendant in the written statement and additional written statement denied the material averments / allegations of the plaint regarding absolute title of 2nd plaintiff, construction of the building by the plaintiff No.2 with the funds provided by the plaintiff No.1 and supplemented by her own savings, raising house building loan, Khata standing in the name of 2nd plaintiff, she paying tax, averments of the plaint at Paras-3 to 17, 19 to 23; permissive possession, not taking care of son of 1st plaintiff and 2nd plaintiff, disappointing at the arrangements made by her mother, handing over the possession of the schedule property to her elder sister, alleged illegal possession by trespass, execution of registered Will on 03.03.1999, 18 OS.4332/2005 conspiring with evil intention, ill treating her mother and preventing her elder sister and her husband from visiting the schedule property, interfering with peaceful possession and enjoyment of the schedule property of the 2nd plaintiff, joining hands with the tenant-Mr.Nithin Agarwal, 2nd plaintiff taking bold decision to settle the schedule property and execution of registered Gift Deed dated 28.01.2000 in favour of the 1st plaintiff, 2nd plaintiff filing affidavit affirming the fact expressly revoking the Will, non execution of registered Gift Deed or HIBA in favour of 1st defendant, the plaintiff no.1 become absolute owner of the schedule property by exercising rights of ownership, etc., However, this defendant admitted that she is the daughter of 2nd plaintiff. Further, this defendant contended that Shastri Nagar property was sold and out of sale proceeds and her 1/4th share was spent for purchasing and also construction of the schedule property. The plaintiffs have no manner of right, title over the schedule 19 OS.4332/2005 property. The documents produced by the plaintiffs are created, concocted documents for the purpose of the suit. The 2nd plaintiff was orally gifted the property in favour of this defendant and thereafter, same was executed and this defendant is in peaceful possession and enjoyment of the schedule property as absolute owner. Mrs.Zareen Taj Begum has instituted civil suits by suppressing true, real and material facts and has only exposed the suit OS.No.8015/1999 and suppressed the other suits- OS.Nos.6392/1999, OS.6012/1999. The plaintiffs have not approached the Court with clean hands. The Khata is standing in the name of this defendant and paying taxes. This defendant is the absolute owner of the schedule property and plaintiffs have no right, title or interest over the same. The suit is barred by limitation. The suit is not valued properly and Court fee paid is insufficient. The plaintiffs had suppressed all true real and material facts. The suit is neither maintainable in law or on facts and this 20 OS.4332/2005 defendant prays to dismiss the suit with exemplary costs.
.5. The defendant No.2 has filed the written statement denying the material averments / allegations of the plaint regarding acquisition of properties, issuing Khata Certificate, obtaining Plan, License, putting up construction, execution of Power of Attorney etc. Further this defendant contended that the suit is false, frivolous and not maintainable for the reason that the presence of this defendant is not required to adjudicate the dispute between the plaintiffs and defendant No.1. It is an interse dispute between the family members for which, this defendant has been unnecessarily dragged into the picture. This defendant has nothing to do with the differences and interse disputes between the plaintiffs and defendant No.1 and they have to settle the same between 21 OS.4332/2005 themselves. Issuance of Khata based on the Title Deed and Khata Certificate is not a document of title and it will only enable the authorities to collect the taxes, who is the title holder and in possession. After the change of Khata, if any dispute is arisen, during the process of issuance of Khata / change of Khata if any objections received, the parties will be directed to set right the dispute by approaching the Civil Court and basing on decision in the civil dispute, the Khata will be made. Even if the Khata is made earlier, it will be changed in pursuant to the decree. There is a provision to file an appeal against the change of Khata. This defendant is not aware with regard to filing of suit. The 1st plaintiff is claiming right under the registered Gift Deed executed by the 2nd plaintiff through her General Power of Attorney Holder on 28.01.2000. To the knowledge of this defendant as per the documents furnished on various occasions, it is seen that the plaintiff No.2 has filed OS.No.6062/1999 and it was withdrawn. Again, she 22 OS.4332/2005 filed another suit in OS.8015/1999 in which 2nd plaintiff has alleged that the 1st defendant is a tenant in the premises on monthly rent of Rs.3,500/- in respect of outhouse portion and she filed the suit since the 1st defendant threatened to interfere and dispossess her from the front portion of the premises. But, the pleadings in the present suit is quite contrary to the tenor of her pleadings in OS.8015/1999. The above facts disclose that the parties have not approached the Court with clean hands.
This defendant has made the Khata in the name of 1st defendant in pursuant to the HIBA executed by the 2nd plaintiff in her favour on 05.03.1998 in respect of schedule property. The said HIBA is notarized one, since there is no need to register the HIBA under Muslim Law and oral HIBA is also permitted. As such, the request of the 1st plaintiff for making Khata was not considered since the right of 23 OS.4332/2005 parties to be decided by the Civil Court. Since there is a first HIBA dated 05.03.1998, the 1st plaintiff will not derive any right and title unless the same is cancelled in a proper suit and the same is not sought for in the plaint. Therefore, the suit must be for declaration to declare him as a lawful owner and subsequently cancel the alleged HIBA dtd. 05.03.1998. In the absence of such plea, no relief can be granted and which will not any benefit to the plaintiffs to get Khata and prays to dismiss the suit with costs.
.6. On the basis of the pleadings of both parties, the following Issues framed:
1. Whether the plaintiff proves that they are the absolute owners of the suit schedule property?
2. Whether plaintiffs are entitled for possession of the suit schedule property from the defendant No.1?
3. Whether the plaintiffs are entitled for mesne profits from defendant No.1 by way of damages for illegal occupation 24 OS.4332/2005 of the suit schedule property by defendant No.1?
4. Whether plaintiff is entitled for Mandatory Injunction against defendant No.2 as prayed in the plaint?
5. Whether suit is barred by limitation?
6. Whether Court fee paid is sufficient?
7. What decree or order?
.7. In support of the case, the Power of Attorney Holder of the plaintiffs examined as PW.1, got marked documents at Ex.P.1 to Ex.P.10 and closed the side. The 1st defendant herself examined as DW.1, got marked documents at Ex.D.1 to Ex.D.26 and closed the side. The 2nd defendant has not adduced evidence.
.8. Heard arguments on both side.
.9. My answers to the above Issues are:
Issues No.1 to 5 - in the negative.
Issue No.6 - in the Affirmative.25 OS.4332/2005
Issue No.7 - As per final order for the following:
REASONS .10. ISSUE No.1: The plaintiffs contended that the 2nd plaintiff being the absolute owner of the schedule property having convinced that the 1st defendant was out and to create fabricate documents to somehow lay a false claim on the schedule property, took the bold decision to settle the plaint schedule property in favour of the 1st plaintiff with that stern decision instructed her elder daughter Mrs.Zareena Taj Begum, who is her Power of Attorney Holder to execute the absolute Gift Deed and by executing the registered Gift Deed dated 28.01.2000 by the 2nd plaintiff in favour of 1st plaintiff, expressly revoked the Will dated 03.03.1999 executed by her in favour of 1st plaintiff and 1st defendant and by virtue of the said registered Gift Deed, the 1st plaintiff has become absolute owner of 26 OS.4332/2005 the plaint schedule property exercising rights of ownership, etc. .11. Per contra, the 1st defendant has denied the said contention of the plaintiffs and interalia contended that the documents produced by the plaintiffs are concocted, created, she is the absolute owner of the schedule property; the Khata is standing in her name and paid taxes to the Bangalore Mahanagara Palike regularly; the plaintiffs have no any manner of right, title or interest over the schedule property; the alleged General Power of Attorney Holder-Smt.Zareena Taj Begum has no any manner of right, title or interest over the suit schedule property has instituted the suit, etc. .12 To substantiate the respective contentions of the parties, Power of Attorney Holder of the plaintiffs- Smt.Zareena Taj Begum herself examined 27 OS.4332/2005 as PW.1, who in her affidavit evidence stated regarding the 2nd plaintiff being the absolute owner of the schedule property by virtue of allotment followed with Lease-cum-Sale Agreement and registered Sale Deed dated 30.07.1993 by the BDA, the 2nd plaintiff being the absolute owner of the schedule property having convinced that the 1st defendant was out and to create fabricate documents to somehow lay a false claim on the schedule property, took the bold decision to settle the plaint schedule property in favour of the 1st plaintiff with that stern decision instructed her elder daughter Mrs.Zareena Taj Begum, who is her Power of Attorney Holder to execute the absolute Gift Deed and by executing the registered Gift Deed dated 28.01.2000 by the 2nd plaintiff in favour of 1st plaintiff, expressly revoked the Will dated 03.03.1999 executed by her in favour of 1st plaintiff and 1st defendant and by virtue of the said registered Gift Deed, the 1st plaintiff has become absolute owner of 28 OS.4332/2005 the plaint schedule property exercising rights of ownership, etc., by reiterating the plaint averments and got marked documents at Ex.P.1 to Ex.P.10.
.13. Per contra, the 1st defendant herself examined as DW.1, who in her affidavit evidence denied the said contention of the plaintiffs and interalia stated that from the date of purchase of suit schedule property, she is in physical possession and enjoyment of the property, her mother-2nd plaintiff executing a HIBA dated 05.03.1998 and taking possession of the same on the same day; transferring Khata in her name and paying taxes, etc., and also stated that the alleged Gift Deed dated 03.03.1999 has been created and concocted by Smt.Zareen Taj Begum and her husband Dr.Syed Sebgathullah, knowingfully well that the donor is not at all having any manner of right, title and interest over the schedule property, etc., by reiterating the 29 OS.4332/2005 averments of the written statement and got marked documents at Ex.D.1 to Ex.D.26.
.14. It is not in dispute that the 2nd plaintiff- Kursheed Begum is the mother of 1st plaintiff, 1st defendants and Mrs. Zareen Taj Begum and the schedule property was allotted by the BDA in favour of the said 2nd plaintiff. The plaintiffs alleges that the 2nd plaintiff has constructed the building on the plaint schedule property with funds provided by the 1st plaintiff and supplemented by her own savings and by raising House building loan. Per contra, the 1st defendant contended that the building has been constructed by selling the property at Shastri Nagar, out of its sale consideration amount. The plaintiffs have produced Encumbrance Certificate at Ex.P.1, which reveals purchase of the schedule property by the 2nd plaintiff from BDA and discharging loan from the Bharath Co-operative Bank Ltd., on 23.03.1998, which supports the contention of the plaintiffs 30 OS.4332/2005 regarding raising house building loan and thereafter, got discharging the mortgage by paying debt to the Bharath Co-operative Bank Ltd. But, the plaintiffs have not produced any reliable documentary evidence to show that the house was constructed with the funds provided by the 1st plaintiff. Further PW.1 in her cross-examination admitted that after selling the house at Shastri Nagar, out of sale proceeds, the present suit schedule property was purchased, which supports the contention of the 1st defendant that the 2nd plaintiff was not the absolute owner of the schedule property.
.15. The learned counsel for the plaintiffs during the course of arguments submitted that the 2nd plaintiff being the absolute owner of the schedule property has executed a registered Gift Deed through her Power of Attorney Holder in favour of 1st plaintiff, thereby 1st plaintiff became absolute owner of the same, the 1st defendant has no right to deny the 31 OS.4332/2005 registered Gift Deed, which is not denied by the executor -the 2nd plaintiff and even formal proof is not necessary, 1st plaintiff has accepted the said gift and acceptance may be either express or implied; the 2nd plaintiff had handed over the Gift Deed to the donee, which amounts to acceptance of the gift and the three essential requirements of the valid gift are fulfilled, if the gift of immovable property is in writing, it is compulsorily registerable under Sec.17 of the Registration Act, the only donor is object to deliver possession, if donor supports that a valid gift was made, then non-delivery of possession if any becomes immaterial and also relied upon the following decisions:
AIR 1996 Allahabad 57 in a case between Smt.Shamadevi -Vs- Smt.Premvathy and others, wherein their Lordships held that:
"(B) Transfer of Property Act (4 of 1882), Ss.122, 123- Registered Gift Deed -
Execution of, not denied by executor- Proviso to S.68, Evidence Act, attracted - 32 OS.4332/2005 Formal proof not necessary - Further non-acceptance of document as not proved, was not proper since it was proved by attesting witness."
AIR 1985 Himachal Pradesh 109 in a case between Smt.Shakunthaladevi -
Vs- Smt.Amardevi, wherein their Lordships held that:
"(A) Transfer of Property Act (4 of 1882), S.122 - Acceptance of gift - Inference of
- Donees not dissenting from accepting gift -Gift not onerous - It cannot be said that donees were not given possession or they have not accepted it - Acceptance may be either express or implied."
AIR 1975 Patna 140 in a case between Ms.Samrathi Devi -Vs-
Parashuram Pandey & Others, wherein their Lordships held that:
"(A) T.P. Act (1882), S.123 - Gift Deed - Validity - Deed handed over to donee -
Amoutns to valid acceptance of gift.
The fact of the deed being handed over by the donor to the donee was sufficient evidence of his having accepted the gift, and the acceptance of the said document was a relevant fact to prove 33 OS.4332/2005 the acceptance of the gift by him."
AIR 1966 Supreme Court 1194 in a case between Maqbool Alam Khan -
Vs- Mst.Khodaija and others, wherein their Lordships held that:
"(B) Mohammadan Law- Gift - Conditions essential for valid gift - Property to be gifted in possession of lesser, mortgagee or trespasser - Procedure to be followed in respect of gift or such property.-
The three pillars of a valid gift under the Mohammadan law are declaration, acceptance and delivery of possession. There can be a valid gift of property in the possession of a lessee or a mortgager and a gift may be sufficiently made by delivering constructive possession of the property to the donee. Some authorities still take the view that a property in the possession of a usurper cannot be given away, but this view appears to be too rigid. The donor may lawfully make a gift of a property in the possession of a trespasser. Such a gift it valid, provided the donor either obtains and gives possession of the property to 34 OS.4332/2005 the donee or does all that he can to put it within the power of the donee to obtain possession."
AIR 1989 Kerala 148 in a case between Imbichimoideenkutty -Vs-
Pathumunni Umma and others, wherein their Lordships held that:
"(B)T.P. Act (1882), Ss.129, 123 and 54 Registration Act (1908), S.17 - 'Hiba' contemplated in Mohammedan Law does not attract Registration under S.123, T.P. Act- Gift of immovable property in writing is compulsorily registerable under S.17 of Registration Act - However, Hiba-bil-iwaz of India is sale - Property being immovable and worth Rs.100/-or more it is registerable (Muslim law - Oral gift - 'Hiba' and Hiba'bil-iwaz' distinguished - Requirement of Registration)."
AIR 1981 Punjab & Haryana 174 in a case between Tirath -Vs- Manmohan Singh and others, wherein their Lordships held that:
"(B) Transfer of Property Act (4 of 1882), S.123 - Gift of the property - Non-35 OS.4332/2005
delivery of possession - Validity of the gift.
Where a Gift Deed has been signed by the donees in token of their acceptance of the same, it is only the donor who can object to the delivery of possession. If the donor supports that a valid gift was made, then non-delivery of possession if any, becomes immaterial."
The facts and circumstances of the present case are not applicable to the above cited decisions. In the instant case, Mrs.Zareen Taj Begum, the elder daughter of the 2nd plaintiff has filed this suit as a Power of Attorney Holder of the plaintiffs, she herself executed registered Gift Deed dated 28.01.2000 on behalf of the 2nd plaintiff in favour of 1st plaintiff and she herself produced the registered Gift Deed and no attesting witnesses have been examined. 36 OS.4332/2005 .16. Per contra, the learned counsel for the defendants during the course of arguments submitted that the alleged power of attorney is false and created document, the alleged General Power of Attorney holder has no right to institute the suit, the alleged General Power of Attorney is neither executed nor authenticated by the notary public, she would not act as a Power of Attorney Holder on behalf of the plaintiffs, etc., and also relied upon the following decisions reported in:
AIR 1984 Delhi 363, in a case between M/s.Electric Construction and Equipment Co., Ltd., -Vs- M/s.
Jagjit Electric Works, Sirsa (Haryana), wherein their Lordships held that:
"Evidence Act (1 of 1872), S.85 - Power of Attorney - Presumption of execution -
Power of Attorney neither executed
before nor authenticated by Notary
Public - Presumption under S.85 cannot be raised."37 OS.4332/2005
ILR 2005 Karnataka 729, in a case between Janki Yashdeo Bhojwani and another -Vs- Indusind Bank Ltd., and Others, wherein their Lordships held that:
"(A) CIVIL PROCEDURE CODE, 1908 (CENTRAL ACT NO.5 OF 1908) - ORDER 3 - RULE 1, 2 - POWER OF ATTORNEY HOLDER - Cannot depose in place and instead of principal, Humberto Luis -Vs-
Floriano Armando Luise, 2000 AIHC 1572 (Bombay) over ruled."
.17. The plaintiffs have produced registered Gift Deed dated 28.01.2000 at Ex.P.5, wherein the 2nd plaintiff has executed the same by her General Power of Attorney Holder-Zareen Taj Begum in favour of the 1st plaintiff in respect of the schedule property. But, the said Gift Deed bears signature of only the alleged General Power of Attorney Holder of the 2nd plaintiff, but do not bear the signature of the donee and have not adduced satisfactory evidence having acceptance of the gift by the donee either may be expressed or implied. On the other hand, in 38 OS.4332/2005 Page No.6 of the Gift Deed, it is stated that "IN WITNESS THEREOF THE Donor and Donee have signed this Deed of Gift on this 28th day of January 2000 in the presence of the Witnesses". But, there is no such signature of the donee. Further, the plaintiffs have produced affidavit of 1st plaintiff at Ex.P.6 and it reveals that he has expressed his willingness on 4th August 1999, to accept to be the donee pertaining to the schedule property, if his mother to be donor to the same and he will be in possession of the said property from the date of execution of the Gift Deed and he had acceptance to register the Gift Deed and his acceptance is implied, which is prior to execution of registered Gift Deed, which is dated 28th January 2000. Hence, the said affidavit-Ex.P.6 do not came to the aid of the 1st plaintiff to prove the valid gift. Further PW.1 in her cross-examination admitted that in her affidavit evidence in examination-in-chief in HRC No.1045/1999, she has stated that her mother- 39 OS.4332/2005 Smt.Kursheed Begum is the absolute owner of the suit schedule property and not stated in her evidence before the HRC Court dated 22.02.2004 or 14.07.2004 that Janaid Ahammed is the owner of the schedule property, in the affidavit filed in the suit seeking police help in the year 2004, she has stated that her mother is the owner of the suit schedule property. From the said admissions in her cross- examination, she stated that her mother i.e., the 2nd plaintiff is the owner of the schedule property in the year 2004. If the registered gift is duly executed on 28.01.2000, she should not have stated so in the year 2004. Further, PW.1 in her cross-examination stated that since the beginning, the 1st defendant was staying in the ground floor of the schedule property, the defendant No.1 was residing with her mother even after her marriage and these statements falsifies the contention of the plaintiffs that she trespassed and illegal possession of the schedule property. Further PW.1 admitted that her 40 OS.4332/2005 brother-plaintiff No.1 not in India at the time of execution of registered Gift Deed, the donee of the property has not signed and there is no endorsement for having accepted the gift, she herself and her husband got registered the Gift Deed under a General Power of Attorney. From these admissions go to show that three essential conditions of valid gift namely, declaration, acceptance and delivery of possession are not fulfilled. Further the plaintiffs have not adduced any satisfactory evidence to show that the parties have acted upon the registered Gift Deed dated 28.01.2000. On the other hand, the 1st defendant has produced the certified copy of Khata Certificate at Ex.D.3, Certified copy of Khata Extract at Ex.D.7, which shows the schedule property is standing in her name. Further DW.1 also produced certified copies of Tax Paid Receipts at Ex.D.10 to Ex.D.17, which shows payment of tax by her. Further 1st defendant also produced Khata Certificate issued by the Corporation at Ex.D.23, Khata 41 OS.4332/2005 Certificate issued by the Corporation at Ex.D.24 and it reveals that Khata in respect of the schedule property standing in her name. The plaintiff No.1 who claiming to be the owner of the schedule property by virtue of registered Gift Deed dated 28.01.2000 not adduced satisfactory evidence to prove the due execution of registered Gift Deed. As such, he do not derive exclusive right, title over the property on the basis of said registered Gift Deed. Hence, the plaintiffs have failed to prove that they are the absolute owners of the suit schedule property, accordingly, I answered Issue No.1 in the negative.
.18. ISSUE NO.2: The plaintiffs have prayed for possession of the schedule property based on title from the 1st defendant, but the plaintiffs have failed to prove that they are the absolute owners of the schedule property, as such, they are not entitled for possession of the schedule property from the 1st 42 OS.4332/2005 defendant, accordingly, I answered Issue No.2 in the negative.
.19. ISSUE NO.3: The plaintiffs have prayed mesne profits from the 1st defendant by way of damages for illegal occupation of the suit schedule property by the defendant No1. The 1st defendant being one of the daughter of the 2nd plaintiff, her occupation of the schedule property cannot be termed as illegal. On the other hand, the plaintiffs have not pleaded in details regarding mesne profits and also not adduced satisfactory evidence in support of the said claim. Hence, the plaintiffs are not entitled for mesne profits as prayed, accordingly, I answered Issue No.3 in the negative. .20. ISSUE NO.4: The plaintiffs have prayed the relief of Mandatory Injunction directing the defendant No.2 to revoke or cancel the Khata and transfer the Khata in the name of 1st plaintiff in 43 OS.4332/2005 respect of the schedule property. The 1st plaintiff having failed to prove that he is the absolute owner of the suit schedule property by virtue of registered Gift Deed dated 28.01.2000, is not entitled for such relief of Mandatory Injunction as prayed, accordingly, I answered Issue No.4 in the negative.
.21. ISSUE NO.5: The 1st defendant in her written statement contended that the suit is barred by limitation, but there are no detailed pleadings in respect of the said contention. On the other hand, the 1st defendant has not adduced satisfactory evidence to show that the suit is barred by limitation, as such, the suit is not barred by limitation, accordingly, I answered Issue No.5 in the negative.
.22. ISSUE NO.6: The 1st defendant in the written statement contended that the suit is not valued 44 OS.4332/2005 properly and the Court fee paid is insufficient, etc., But, there are no detailed pleadings in respect of the said contention in the written statement and also not adduced satisfactory evidence to show that the Court fee paid is insufficient. In the absence of the same, the Court fee paid is sufficient, accordingly, I answered Issue No.6 in the affirmative. .23. ISSUE NO.7: In view of the reasons and discussion on the above Issue Nos.1 to 6, I proceed to pass the following:
ORDER Suit of the plaintiffs is hereby dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, the transcript print is corrected and then pronounced by me in the open court on this the 12th day of August 2015).
(JINARALAKAR. B.L.) XL Addl. City Civil & Sessions judge, Bengaluru.
45 OS.4332/2005
ANNEXURE
WITNESSES EXAMINED ON BEHALF OF
PLAINTIFFS:
PW.1 -Mrs.Zareen Taj Begum
W/o. Dr.Syed Sebgathullah.
DOCUMENTS PRODUCED ON BEHALF OF
PLAINTIFFS:
Ex.P.1 Encumbrance Certificate.
Ex.P.2 Certified copy of Sale Deed dated
30.07.1993.
Ex.P.3 Certified copy of Tax Paid Receipt.
Ex.P.4 Certified copy of Order passed by the
Hon'ble High Court of Karnataka inMFA No.915/2000.
Ex.P.5 Original Gift Deed dated 28.01.2000. Ex.P.6 Affidavit sworn to by the plaintiff before the Notary Public.
Ex.P.7 General Power of Attorney executed by 2nd plaintiff in favour of plaintiff No.1 dated 28.05.2005.
Ex.P.8 Supporting affidavit of Ex.P.7. Ex.P.9 Affidavit sworn to by 2nd plaintiff. Ex.P.10 Original Power of attorney executed by 2nd plaintiff dated: 24.03.2005.
WITNESSES EXAMINED ON BEHALF OF
DEFENDANTS:
DW.1 -Mrs.Shataj Khan,
W/o. Abhibula Khan.
46 OS.4332/2005
DOCUMENTS PRODUCED ON BEHALF OF
DEFENDANTS:
Ex.D.1 Certified copy of Deposition of PW.1 in
HRC No.1046/1999.
Ex.D.2 Certified copy of Endorsement issued by
the BMP dated 22.11.2003.
Ex.D.3 Certified copy of Khata Certificate.
Ex.D.4 Certified copy of Tax Paid Receipt dated
07.08.1999.
Ex.D.5 Certified copy of Khata Certificate.
Ex.D.6 Certified copy of Certificate issued by
BMP dated 16.07.2004.
Ex.D.7 Certified copy of Khata Extract.
Ex.D.8 Certified copy of Tax Paid Receipt.
Ex.D.9 Certified copy of Acknowledgment
issued by the Revenue Inspector of
Corporation dated 06.04.2004.
Ex.D.10 to Certified copies of Tax Paid Receipts. Ex.D.17 Ex.D.18 Certified copy of Order passed in HRC No.1045/1999.
Ex.D.19 Certified copy of Order Sheet of OS.No.8015/1999.
Ex.D.20 Certified copy of Order Sheet of OS.No.6392/1999.
Ex.D.21 Certified copy of General Power of Attorney executed by the plaintiff No.2 in favour of plaintiff No.1. Ex.D.22 General Power of Attorney dated 27.11.1992 executed by the plaintiff No.2-Kursheed Begum.
Ex.D.23 Khata Certificate issued by the defendant Corporation.
Ex.D.24 Khata Certificate issued by the Corporation dated 15.01.2010.
Ex.D.25 Registered Discharge Note dated 10.05.1994. executed by Bharath Co-
operative Bank Ltd.
47 OS.4332/2005Ex.D.25(a) Signature of DW.1.
Ex.D.26 Registered Sale Deed dated 30.07.1993 executed by the BDA in favour of Smt.Kursheed Begum in respect of vacant site.
Ex.D.26(a) Signature of DW.1.
(JINARALAKAR. B.L.) XL Addl. City Civil & Sessions judge, Bengaluru.