Bangalore District Court
Sri. Sridhar. P Kamath vs Sri.Ganesh Shenoy on 1 June, 2021
1
O.S.No. 7101/2012
C.R.P.67 Govt. of Karnataka
Form No.9(Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XII ADDL. CITY CIVIL JUDGE, AT
BENGALURU
Dated this the 1st day of June, 2021.
PRESENT: SRI. SATHISHA L.P., B.A.,LL.B.,
XII ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH.No.27), BENGALURU
O.S.No.7101/2012
PLAINTIFFS : 1. Sri. Sridhar. P Kamath,
S/o Padmanabha. R Kamath,
Aged about 46 years,
R/at G-7, Princes Park Apartments,
Building No.3, J.N.Road,
Vassai, Thane,
State of Maharashtra.
2. Smt.P.N.Latha Shenoy,
W/o Sridhar. P Kamath,
Aged about 42 years,
R/at G-7, Princes Park Apartments,
Building No.3, J.N.Road,
Vassai, Thane,
State of Maharashtra.
(By S.V.S/ H.B.T, Advocate)
VS.
DEFENDANTS : 1. Sri.Ganesh Shenoy
S/o P. Narsimha Shenoy,
2
O.S.No. 7101/2012
Aged about 49 years,
R/at No. 9, Unnathi,
New Bank Colony,
Chunchughatta main road,
Konanakunte,
Bangalore- 560062.
2. Sri.P.Narasimha Shenoy,
(Dead)
S/o Late Ganapathi Shenoy,
Aged about 70 years,
R/at No. F-6, Leeway Enclave,
1st floor, Hosa Palya,
Opp: Ujvala Factory,
Yelukunte village,
Bommanahalli post,
Bangalore - 560068.
(D1- K.G.A, Advocate
D2- Exparte)
Date of Institution of the suit : 01-10-2012
Nature of the suit : Declaration & Injunction
Date of commencement of : 11-09-2014
recording of the evidence
Date on which the Judgment : 01-06-2021
was pronounced
Total Duration Years Months Days
08 08 00
(SATHISHA L.P.)
XII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
The plaintiffs are before the court for the relief of 3 O.S.No. 7101/2012 declaration that the gift deed dated 28.08.2012 registered as document No. 5997/2012-13 on the file of the Sub- registrar, Banasavadi, Bangalore as null and void and not binding on the plaintiffs and for permanent prohibitory injunction restraining the defendant No.1 or any other person claiming under or through him from interfering with peaceful possession of schedule property by plaintiffs and for permanent prohibitory injunction restraining the defendant No.1 or any persons claiming under or through him from disposing off or alienating or encumbering the schedule property in any manner, and for the cost of the suit.
2. Brief facts of the plaintiffs case is that, defendant No.2 is the father of plaintiff No.2 and defendant No.1. The plaintiff No.1 is the husband of the plaintiff No.2. The plaint schedule property was jointly purchased by the plaintiff No. 2 and defendant No.2 under a registered sale deed dated 13.03.1996 registered as document No.12867/95-96 registered in the Sub-registrar, Krishnarajapura. The sale consideration was in respect of the said property was solely 4 O.S.No. 7101/2012 paid by the plaintiff No.2 to the vendor of the schedule property and the name of the defendant No.2 was shown as one of the purchasers out of love and affection the daughter had towards the father and also by the fact that defendant No.2 was very much attached to the daughter and mostly depending on her for all kinds of support. The defendant No.2 while he was in sound and disposing state of mind, executed a will dated 12.03.1998 bequeathing his rights in the plaint schedule property in favor of plaintiff No.2 and the said document was registered as document No.242/1997-98 on the file of the sub-registrar Krishnarajapura. Execution of will was very much within the knowledge of the defendant No.1 and another son of defendant No.2 namely Girish Shenoy. During the time when the aforesaid 2 documents namely the document No.1 and will mentioned were executed, plaintiff No.2 defendants and another son of defendant No.1 namely Girish Shenoy were residing together. All the aforesaid facts are known to all the family members namely plaintiff No.2, defendants and Girish Shenoy. Thereafter the plaintiff No.2 married plaintiff 5 O.S.No. 7101/2012 No.1. plaintiff No.1 had also great love and respect towards his father-in-law. Plaintiffs supported defendant No.2 in all respects. The defendant No.2 had a feeble health condition. It is defendant No.2 who was instrumental in instructing plaintiff No.2 to construct a residential building in the plaint schedule property. The defendant No.2 always used encourage plaintiffs to construct a house in the plaint schedule property, so that the premises could be let out and plaintiffs could get some income from improvements. Initially though plaintiffs did not show interest as they were staying in Maharashtra due to the persistence of defendant No.2 plaintiffs decided to construct a house in the plaint schedule property. Accordingly they applied for building license, demolish the existing building and after obtaining the license constructed a house.
3. Plaintiffs constructed the house and permission was obtained from Municipal Commissioner, City Municipality, K.R. Puram. The name of the owner is shown as plaintiff No. 2 in the said document. The premises in the plaint schedule property were let out to the tenants by 6 O.S.No. 7101/2012 plaintiff No.2, and he has also invested his hard earned money for construction of the residential building in the plane schedule property. All these facts are very much within the knowledge of defendant No. 1. The defendant No.2 never claimed that he has any investment either in the purchase of the property or the improvements made in the plaint schedule property. The plaintiff No. 2 throughout enjoyed the plaint schedule property as absolute owner and defendant No. 2 was only name lender to the property as a co-owner. Plaintiffs were paying tax regularly to the plaint schedule property and the building thereafter.
4. It is at the instance of defendant No.2, the plaintiff No.1 had invested huge money in construction of the building and also paying the tax regularly to the local authority, it was decided that plaintiff No.2 shall gift the schedule property to plaintiff No.1 and accordingly, plaintiff No.2 executed a gift deed dated 16-04-2003 in favor of plaintiff No.1, in respect of the plaint schedule property which is registered. Thus by virtue of the said gift deed plaintiff No.1 came to be the absolute owner of the property 7 O.S.No. 7101/2012 and defendant No.2 was fully aware of the execution of the document and he has supported plaintiff No.2 with the said transaction. The plaintiff No.2 got his name mutated in the revenue register maintained by the local authority and paying tax in respect of the said property. Plaintiffs submits that even though the will in document No.2 has not came into effect, however by virtue of act of implied relinquishment on the part of the defendant No.2 in giving up his any right in the plaint schedule property, it could be construed that, plaintiff No.2 has acquired right, title and interest over the plaint schedule property and virtually to the benefit of plaintiff No.1 under the gift deed mentioned above.
5. Plaintiff No.1 is the absolute owner of the plaint schedule property, in view of the document No.4 and also by virtue of implied relinquishment of right by defendant No.2 in favor of plaintiff No.2 and to the benefit of plaintiff No.1 by virtue of document No.4.
6. Plaintiffs is being husband and wife are enjoying the usufructs from the plaint schedule property. Tenants are 8 O.S.No. 7101/2012 inducted into the premises in the schedule property and are paying rents to them. The plaintiff No.1 is in the actual possession and enjoyment of the plaint schedule property.
7. The defendant No.2, as aforesaid is mostly dependent on plaintiff No.1 for all kinds of support, however is also being supported actively by Girish Shenoy, another son of defendant No.2. The defendant No.2 has been residing with Girish Shenoy and often used to come down to stay with plaintiff No.2 also. Defendant No.1 is staying separately with his family and he has got little concern for defendant No.2. Defendant No.2 since about 2 years has been suffering inconsistent health and age is catching up his memory too. He even is not in a position to sign any document nor he is able to read properly. Albeit he understands the consequences of doing any act. Defendant No.1 is fully aware of the present health condition of different No.2 and has misused the relationship with father and the inability/health condition of defendant No.2 in that behalf to his unfair advantage.
8. It is during the first week of September, 2012 9 O.S.No. 7101/2012 tenant of plaintiffs called and informed that defendant No.1 is pressurizing them to vacate premises on the pretext that, he is the owner of the property and that he will take coercive steps to evict the tenants if his demands are not met out immediately. They also informed plaintiff No.2 that defendant informed them that on the strength of registered document executed by defendant No.2 and plaintiff No.2, he became the owner of the schedule property. The plaintiff immediately called defendant No.2 and enquired about the Aforesaid said events. Defendant No.2 was and pleasantly surprised and denied that he was executed any document in favor of the defendant No.1 in respect of plaint schedule property, however he informed that defendant No.1 had taken him to his house on 20 th August, 2012 and that after few days he took him to some place and asked him to put his thumb impression on some paper, saying that the same is needed for his personal documentation purposes and he could not recollect the purpose of putting such thumb impression.
9. Plaintiffs immediately came down to Bangalore 10 O.S.No. 7101/2012 and initially sought to search any possible document in the office of the sub-registrar, K.R.Puram, however they could not trace any. The surprise was awaiting them as they went to Sub-registrar, Banaswadi, where they found that a document purported to be a gift deed, alleged to be executed by defendant No.2 alleged to be for himself and representing plaintiff No.2 as a GPA in respect of the plaint schedule property. Plaintiffs immediately got a copy of the said document. Apart from the surprise they were also shocked to see that defendant No.2 alleged to have represented plaintiff No.2 as GPA holder to execute the alleged gift deed.
10. Plaintiff No.1 has not given any GPA to defendant No.2 at any point of time and even defendant No.2 has not taken any such GPA from plaintiff No.2. Plaintiffs came to know that the defendant has played foul play, forged the signature of plaintiff No.2 solely to get executed the document No.5 mentioned here above in his favor taking undue advantage of the feeble health condition of defendant No.2. This is a clear case of fraud played by 11 O.S.No. 7101/2012 defendant No.1. The plaintiff No.3 immediately approached the jurisdictional police authorities and lodged a complaint against him and others. Police authorities have registered the complaint and are now investigating the matter.
11. Plaintiff No.1 is the owner of schedule property and even in the worst case, he still remains to be the co- owner of the schedule property, by virtue of the gift deed mentioned here in above. The defendant No.2 has relinquished his rights in favor of the plaintiffs. Even otherwise, defendant No.2 never intended to execute the gift deed in favor of defendant No.1 and the defendant No.7 was got executed suppressing the nature of document i.e., gift deed from defendant No.2 and hence the same is not binding on the plaintiffs. Document No.7 mentioned here above is a sham and illegal document, and it is entitled to be declared so by decree by this Court. Defendant No.1 has not derived any title to the schedule property in view of the said contentions raised by the plaintiffs.
12. Defendant No.1 has been threatening dispossession of tenants who are duly inducted by plaintiffs 12 O.S.No. 7101/2012 in the premises situated at schedule property by virtue of document No.7, contending that he has acquired the title to the schedule property which is totally false. With these contentions the plaintiffs seeks to decree the suit.
13. In pursuance of the summons issued by this court the defendant No.1 has appeared before the court and has filed the written statement by disputing and denying the plaint averments, wherein he has contended that, the suit filed by the plaintiffs is not maintainable either on law or on facts, the suit is false, frivolous and vexatious, and has been filed with the malafide intention and hence the suit is liable to dismissed with exemplary cost of Rs 1,00,000/-. The relationship of the parties is admitted and it is also admitted that the defendant No.2 and plaintiff No.2 have jointly purchased the property under the sale deed dated 13.03.1996.
14 . it is denied that, the defendant No.2 was in sound and disposing state of mind, & he has executed a will dated 12.03.1998 bequeathing his rights in the suit schedule property in favor of the plaintiff No.2 and it is also 13 O.S.No. 7101/2012 denied that the execution of the will was very much within the knowledge of the defendants and submitted that it is not with the knowledge of the first defendant. And further contended that, the plaintiff No.2 and defendant No.2 was jointly acquired the suit schedule property through the sale deed dated 13.03.1996, As a result the plaintiff No.1 is got half right and possession in the suit schedule property. Therefore the plaintiff No.2 not at all right to gift the suit schedule property to the plaintiff No.1. The plaintiff No.2 cannot gift the suit schedule property through a will because the testator is alive. Hence she has no right to gift the property to the plaintiff No.1, hence the said transaction is illegal and void.
15 . It is denied that the gift in question is not completed in the manner of the Section 123 of the Transfer of Property Act and for the purpose of making gift immovable property, the transfer must be effected by the registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Therefore the Section is very clear that for making a valid gift deed the 14 O.S.No. 7101/2012 transfer must be effected by a registered instrument signed by the donor with two witnesses, which in present case is properly done, hence the question of canceling the gift deed does not arise.
16. There arose no cause of action for the plaintiffs to file this false, frivolous, vexatious suit against the defendants but the plaintiffs trying to acquire the suit schedule property through forged and created documents. The plaintiffs are trying to build a false case against the defendants by misusing the process of law though this Hon'ble Court, and this suit is deserves to dismissed with exemplary cost in favor of defendants.
17. The plaintiff are not entitled to get any of the reliefs they had sought from this court as through out their pleadings plaintiffs have suppressed the truth away from the knowledge of this court, has not approached this court with the sort of sincerity with which they should have, hence none of the plaintiffs prayers survive to granted by this court in whatsoever manner. With these contentions he seeks to dismiss the suit.
15
O.S.No. 7101/2012
18. On the basis of the above pleadings, the following issues are framed by my predecessor on 24.07.2014.
I. Whether the plaintiff proves that the 1 st plaintiff is the absolute owner of the suit schedule property? II. Whether the plaintiff proves that the gift deed dated 28.8.2012 executed by the 2 nd defendant in favor of 1st defendant is not binding on the plaintiff? III. Whether the plaintiff proves that they are in lawful possession of the suit schedule property as on the date of the suit?
IV. Whether the plaintiff proves the interference by the defendants with the peaceful possession and enjoyment of the suit schedule property? V. Whether the court fee is paid by the plaintiff is proper?
VI. Whether the plaintiffs are entitled for the relief sought for?
VII. What order or decree?
19. To substantiate the contention of the plaint 16 O.S.No. 7101/2012 P.N.Latha Shenoy W/o Sridhar P Kamath examined as P.W.1 and Ex.P.1 to P.25 are marked. Ex.P.1 is Registered sale deed dated 13-03-1996, Ex.P.2 is Death Will dated 12-03- 1998, Ex.P.3 is House construction sanction letter dated 20- 06-2001, Ex.P.4 is Registered gift deed dated 16-04-2003, Ex.P.5 to 7 are Khatha Extracts , Ex.P.8 is Property tax paid receipt, Ex.P.9 is Khatha transfer, Ex.P.10 is tax paid receipt, Ex.P.11 is copy of gift deed, Ex.P.12 is copy of GPA, Ex.P.13 is EC, Ex.P.14 is Copy of affidavit, Ex.P.15 is copy of Form-B property register, Ex.P.16 & 17 is 2 tax paid receipts, Ex.P.18 is copy of Medical certificate, Ex.P.19 is letter dated 28-05-2012 submitted before the sub-registrar, Banaswadi, Ex.P.20 is copy of registered sale deed dated 13-03-1996, Ex.P.21 is certified copy of sanction plan, Ex.P.22 is Rental agreement dated 11-05-2012. Ex.P.23 is certified copy of FIR issued in Banswadi police station Cr.No.517/2012. Ex.P.24 is certified copy of entire charge sheet including FSL report and PF, Mahazar, statement of complaint and witnesses, Ex.P.25 is discharge summary of Narasimha Shenoy dated 03-06-2010.
17
O.S.No. 7101/2012
20. From the defendants side defendant No.1 is examined as D.W.1 and Ex.D.1 & 2 are marked. Ex.D.1 is certified copy of complaint in PCR.No. 886/2017, Ex.D.2 is Certified copy of the order sheet in PCR.No. 886/2017.
21. Heard the arguments and perused the records.
22. My finding on the above issues are :-
Issue No.1: In the Affirmative Issue No.2: In the Affirmative Issue No.3: In the Affirmative Issue No.4: In the Affirmative Issue No.5: In the Affirmative Issue No.6 & 7: As per final order, for the following:-
REASONS
23. Issue No.1:- The plaintiffs have filed present suit against the defendant for the relief of declaration to declare that the gift deed dated 28.08.2012 registered as document No.5997/2012-13 on the file of Sub-registrar office Banasavadi, Bangalore as null and void and not binding on the plaintiffs and for permanent prohibitory 18 O.S.No. 7101/2012 injunction restraining the defendant No.1 or any persons claiming under or through him from interfering with peaceful possession of the schedule property by the plaintiffs and for permanent prohibitoty injunction restraining the defendant No.1 or any person claiming under or through him from disposing off or alienating or encumbering the schedule property in any manner, for the cost of the suit.
24. The above said reliefs have been sought on the ground that the suit property has been purchased by the plaintiff No.2 and defendant No.2 jointly under registered sale deed dated 13.3.1996 for which entire sale consideration has been paid by the plaintiff No.2 and defendant No.2 has executed a will dated 12.3.1998 bequeathing his entire rights in the suit property in favor of the plaintiff No.2 and plaintiff No.2 has executed a gift deed to plaintiff No.1 gifting the entire suit schedule property under the gift deed dated 16.4.2003, in view of the same the plaintiff No.1 is the absolute owner of the suit property and the defendant No.1 fraudulently got executed a gift 19 O.S.No. 7101/2012 deed dated 28.8.2012 by forging the GPA dated 18.7.2011 and signature of the defendant No.2 was obtained on the said gift deed fraudulently, and hence seeks to decree the suit.
25. On the other hand the defendant No.1 has denied that the gift deed dated 28.8.2012 has been obtained fraudulently & GPA dated 18.7.2011 is forged and contends that he is the owner of the suit property and the said gift deed and GPA have been executed validly and thereby seeks to dismiss the suit.
26. It is admitted fact that the plaintiff No.2 and defendant No.2 have jointly purchased the suit property under the registered sale deed dated 13.3.1996, which is produced at Ex.P.1. on perusal of the same it appears that defendant No.2 and plaintiff No.2 have jointly purchased the suit schedule property from S.Ramaiah, Sharadamma, Chandrappa and Rajendraprasad for a total consideration of Rs 1,15,000/-. And the said sale deed has been executed on behalf of the vendors by their GPA holder M.Srinivas. this transaction has been admitted by the defendant No.1 in his 20 O.S.No. 7101/2012 written statement at para 4 as under ;-
"4. The first defendant admits to the averments in the para 3 of the plaint that "defendant No.2 is the father of plaintiff No.2 and defendant No.1. plaintiff No.1 is the husband of the plaintiff No.2, further averments in the same para that the suit schedule property was jointly purchased by the plaintiff No.2 and defendant No.2 vide sale deed dated 13.3.1996 registered as document No.12867/95-96, book I, vol.1204, at pages 219 to 223 on the file of the sub- registrar Krishanarajapura is all true and best of knowledge of this defendant."
27. During the life time defendant No.2 stated to have executed the will dated 12.3.1998 in favor of the plaintiff No.2 bequeathing his share in the suit property, which is produced at EX.P.2, though the same has been denied by the defendant No.1 in his written statement, the same has been not challenged by any of the legal heirs after his death or the same is not challenged by the defendant No.2 during life time.
28. The plaintiff No.2 who is undisputed joint 21 O.S.No. 7101/2012 purchaser of the suit property under the Ex.P.1 has gifted the entire suit schedule property to the plaintiff No.1 under the registered gift deed dated 16.4.2003 which is produced at Ex.P.4, the same is also not challenged even by defendant No.2 during his life time though he is the joint purchaser of the suit schedule property and after his death by any of the one of his legal heirs. On the basis of the said registered instrument of gift, the khata of the suit property has been mutated in the name of the plaintiff No.1 in the concerned authority which are produced at Ex.P.7,8,9. From appreciation of these documents it appears that the suit property is the absolute property of the plaintiff No.1, hence the Issue No.1 is answered in affirmative.
29. Issue No.2:- the very theme of the suit is the dispute over the alleged execution of Gift deed dated 28.8.2012 by the defendant No.2 to defendant No.1 in respect of the suit schedule property, which is produced at Ex.P.11.
30. As already stated the suit is filed by the plaintiffs challenging/disputing the execution of the Ex.P.11, by 22 O.S.No. 7101/2012 stating that the plaintiff No.2 and defendant No.2 have jointly purchased the suit schedule property under the sale deed dated 13.3.1996 which is produced at Ex.P.1 and alleged that the defendant No.1 fraudulently and by forging the GPA dated 18.7.2011 has got executed the said gift deed, and plaintiffs' claims that the same is not binding on them. Whereas the defendant claims the valid execution of the said gift deed and GPA.
31. In view of this, the burden is always upon the defendant No.1 to prove the valid execution of the gift deed, when there is allegation of forgery and fraud in execution of the gift deed.
32. Gift has been defined under Section 122 of the T.P.Act. Section 122. 'Gift' defined.- "gift" is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person called donor, to another, called donee, and accepted by or on behalf of the done.
Acceptance when to be made.- such acceptance must be made during the lifetime of the donor and while he 23 O.S.No. 7101/2012 is still capable of giving.
If the donee dies before the acceptance the gift is void.
On perusal of this provisions makes it clear that, to say a gift is valid it must be made by persons having authority/right/title over it and gift must be made by voluntarily. When the question of "voluntarily" arises then we have to fall back to the free consent as defined under the contract Act. in the back drop of these two aspects let me consider one by one.
First let me consider the title over the suit property of the defendant No.2 to gift the same to the defendant No.1.
33. Admittedly the suit property has been jointly purchased by the plaintiff No.2 and defendant No.2 under a registered sale deed dated 13.03.1996 which is produced at Ex.P.1. the defendant No.2 who is none other than the father of the plaintiff No.2 and defendant No.1, who died during the pendency of the suit on 12.04.2017 as per the order sheet entry dated 19.06.2017 (the same is reported by the plaintiffs by filing memo). In pursuance of the sale deed, the 24 O.S.No. 7101/2012 khatha of the suit property was stood in the name of the plaintiff No.2 and she also stated to have constructed the house/building after obtaining the license from the concerned authority, which is produced at Ex.P.3. which stands in the name of the plaintiff No.2 alone. And more important is, plaintiff No.2 has executed the registered gift deed dated 16.04.2003 produced at Ex.P.4, in favour of her husband i.e. plaintiff No.1 gifting entire suit schedule property. As already stated this gift deed is executed during the life of defendant No.2. Admittedly the suit schedule property was jointly purchased by the plaintiff No.2 and defendant No.2. If at all the defendant No.2 was having any dispute then certainly he should have challenged gift deed dated 16.04.2003 but he has not challenged the same, though he died on 19.06.2017 after lapse of almost of 14 years from the date of the execution of the gift deed dated 16.04.2017. So in my humble opinion the defendant No.2 was not all having any right/title or interest over suit schedule property to execute the Gift deed in favor of defendant No.1 as on 28.08.2012, and hence gift deed 25 O.S.No. 7101/2012 dated 28.08.2012 executed by the defendant No.2 in favor of defendant No.1 having no right/title or interest is not valid in the eye of law.
Now coming to the aspect of " free consent" as defined under the contract Act.
Section.14. "free consent" defined.- consent said to be free when it is not caused by.-
(1) Coercion, as defined in section 15; or (2) Undue influence, as defined in section 16; or (3) Fraud, as defined in section 17; or (4) Misrepresentation, as defined in section 18; or (5) Mistake, subject to the provision of sections 20, 21 and 22 Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation or mistake.
Herein in this case the specific allegation against the defendant No.1 is that, he has obtained the gift deed dated 28.08.2012 marked as Ex.P.11 under fraudulent manner. It means there is no free consent of the defendant No.2. then under such circumstances the burden was upon the defendant No.1 to disprove the same by cogent evidence, 26 O.S.No. 7101/2012 but the same is not done by the defendant No.1.
Apart from this there is one more important aspect is that, Admittedly under the Ex.P.11 entire suit property has been gifted to the defendant No.1 by defendant No.2 for himself and also as a GPA holder of the plaintiff No.2. here the plaintiff No.2 alleges that she has not executed any GPA in favor of defendant No.2 to execute the gift deed in favor of the defendant No.1. The alleged forged GPA has been produced before the court at Ex.P.12. in this regard she has lodged the complaint before the concerned police and the police authorities have filed FIR initially and later on filed the charge sheet against the defendant No.1 for the offences punishable under Sections 419, 468, 471, 420, r/w 34 of IPC, the same has been admitted by the defendant No.1 during the cross examination. And the criminal trial is still pending in this regard. Before filing the charge sheet the police authorities have obtained the forensic experts opinion regarding the Ex.P.12, and the experts have opined that signature of the plaintiff No.2 has been forged over the Ex.P.12. These documents have filed at Ex.P.23,24. Basing 27 O.S.No. 7101/2012 upon these documents it is clear that Ex.P.11 gift deed is not a valid document, upon which no title can be transferred.
34. Last but another important aspect is that, Gift deed which is compulsorily attestable document under law. The defendant No.1 claims the title over the suit schedule property on the basis of the gift deed dated 28.08.2012 stated to have executed by defendant No.2 for himself and on behalf of plaintiff No.2 as a GPA holder. In this regard section 68 of the Evidence Act plays a vital role, and the same is extracted for the better understanding;
Section.68.- proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of court and capable of giving evidence;
[provided that is shall not be necessary to call an attesting witness in proof of the execution of any document, 28 O.S.No. 7101/2012 not being a will, which has been registered in accordance with the provisions of the Indian registration Act.1908 (16 of 1908), unless its execution by the person by whom purports to have been executed is specifically denied] So, on plain reading of this provision it makes clear that, gift deed being compulsory attestable document has to be proved in accordance with section 68 of the evidence Act. now the defendant No.1 claims his title over the suit property on the basis of the gift deed which is produced at Ex.P.11, and the same is being denied by the plaintiffs. Under the said circumstances of the case the defendant No.1 should have examined at least one attesting witness to prove his title, because plaintiffs are the owners of the said property and more particularly plaintiff No.2 who is the joint purchaser along with defendant No.2 has denied the execution of the gift deed as well the GPA dated 18.7.2011 upon which the said gift deed dated 28.8.2012 is executed, under these circumstances it was necessitated the defendant No.1 to examine at least one attesting witness to 29 O.S.No. 7101/2012 prove the document. It is very interesting note here that one of the attesting witness to the said gift deed dated 28.8.2012 is Smt Usha Ganesh, who is none other than wife of defendant No.1 and he has failed to examine her, thereby valid execution of the gift deed dated 28.8.2012 is not proved by the defendant No.1 and he has not discharged his burden. In such situation this court has no other option but to answer the issue No.2 as Affirmative.
35. Issue No.3 & 4:- These issues are taken together for common discussion as they are interlinked. Admittedly defendant No.1 has failed to prove valid execution of the gift deed in his favor and building over the suit property has been constructed by the plaintiff No.2 after obtaining the license from concerned authority which is produced at Ex.P.3 and blue print for the building is also in the name of the plaintiff No.2 at the time of obtaining the license. And khatha, tax paid receipts are all stands in the name of the plaintiffs and plaintiffs are able to prove the ownership over the suit property and plaintiff No.1 has executed the rent agreement as per Ex.P.22. all these shows 30 O.S.No. 7101/2012 that plaintiffs are in possession of the suit property and whereas the defendant claims the possession over the suit property on the basis of the invalid document, claiming possession over the plaintiffs property is nothing but interference, hence I hold these two issues are proved by the plaintiffs and thereby these two issues are Answered in Affirmative.
36. Issue.No.5:- This suit is filed by the plaintiffs to declare the gift deed dated 28.08.2012 is null and void and not binding on them and for permanent injunction and the suit is valued under sections 24(d) and 26(c) of the court fee and suit valuation act and thereby paid the court fee of Rs 50 is paid. Section 24 of KCFSV Act provides for valuation of the declaration suit and particularly 24(d) provides for valuation of the suit in any other declaratory suits and my humble opinion the court fee paid under section 24(d) and 26(c) are correct and hence the same is answered in affirmative.
37. Issue No.6 & 7:- For the above said reasons I hold that the plaintiffs are entitled for the following reliefs 31 O.S.No. 7101/2012 and proceed to pass the following;
ORDER The suit of the plaintiffs is decreed with cost, It is hereby declared that the gift deed dated 28.8.2012 executed by Sri.P.Narasimha Shenoy, S/o late Ganapathi shenoy, registered as document No.5997/2012-13 on the file of the Sub-registrar, Banasavadi, Bangalore is null and void and not binding on the plaintiffs.
The defendant is hereby restrained by way of permanent injunction from interfering in the peaceful possession and enjoyment of the suit schedule property by the plaintiffs.
By acting under section 31(2) of specific relief Act, I hereby direct the office to send the certified copy of this judgment to the Sub-registrar, Banasavadi, Bangalore, to make necessary entry in the concerned register in respect of gift deed dated 28.08.2012 registered as document No. 5997/2012- 13 32 O.S.No. 7101/2012 Draw decree accordingly.
(Dictated to the Stenographer on computer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 1st day of June, 2021.) (SATHISHA L.P.) XII ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY SCHEDULE All the piece and parcel of property bearing No. 12, C.M.C. Khatha No.10, BBMP Khatha No. 742, situated at Akshaya Nagar, behind Lord Shani temple, Koundenahalli village (Ramamurthy Nagar), K.R.Puram, Bangalore, measuring 60X40 feet along with 1700 sq.ft residential building and bounded by;
East by: Road
West by: Private property
North by: Property of Nagabhushan and Jairam South by: Property No.11 ANNEXURE I. List of witnesses examined on behalf of:
(a)Plaintiff' side :
P.W.1: P.N.Latha Shenoy
33
O.S.No. 7101/2012
(b)Defendant's side :
D.W.1: Ganesh Shenoy
II. List of documents exhibited on behalf of :
(a)Plaintiff' side :
Ex.P.1: Registered sale deed dated
13-03-1996
Ex.P.2: Death Will dated 12-03-1998
Ex.P.3: House construction sanction letter
dated 20-06-2001
Ex.P.4: Registered gift deed dated
16-04-2003
Ex.P.5 Khatha Extracts
to 7:
Ex.P.8: Property tax paid receipt,
Ex.P.9: Khatha transfer
Ex.P.10: Tax paid receipt
Ex.P.11: Copy of gift deed
Ex.P.12: Copy of GPA
Ex.P.13: EC
Ex.P.14: Copy of affidavit
Ex.P.15: Copy of Form-B property register Ex.P.16 2 Tax paid receipts 34 O.S.No. 7101/2012 & 17:
Ex.P.18: Copy of Medical certificate Ex.P.19: Letter dated 28-05-2012 submitted before the sub-registrar, Banaswadi Ex.P.20: Copy of registered sale deed dated 13-03-1996 Ex.P.21: Certified copy of sanction plan Ex.P.22: Rental agreement dated 11-05-2012 Ex.P.23: Certified copy of FIR issued in Banswadi police station Cr.No.517/2012 Ex.P.24: Certified copy of entire charge sheet including FSL report and PF, Mahazar, statement of complaint and witnesses Ex.P.25: Discharge summary of Narasimha Shenoy dated 03-06-2010
(b)Defendants side :
Ex.D.1: Certified copy of complaint in PCR.No. 886/2017 Ex.D.2: Certified copy of the order sheet in PCR.No. 886/2017 XII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.