Bangalore District Court
Smt.S.Parvathamma vs Shri.B.S.Nataraja Murthy on 11 February, 2015
IN THE COURT OF THE VIII ADDITIONAL CITY CIVIL &
SESSIONS JUDGE (CCH :15) AT BENGALURU CITY
DATED THIS THE 3RD DAY OF MAY 2014
PRESENT:
SHRI.MASTER R.K.G.M.M. MAHASWAMIJI,
M.A., LL.B.,
VIII Additional City Civil & Sessions Judge,
Bengaluru.
ORIGINAL SUIT No. 4919/1998
BETWEEN:
PLAINTIFF: SMT.S.PARVATHAMMA,
W/o. Late Gangadharaiah,
Age: Major, R/o. No.9,
2nd Cross, 2nd Main, Vittal Nagar,
Chamarajpet, Bengaluru-560 018.
By Shri.G.S.PATIL, Advocate.)
AND:
DEFENDANTS: 1. SHRI.B.S.NATARAJA MURTHY,
Father's name not known
Age: Major,
2. N.AKSHAYA
S/o. B.S.Nataraja Murthy, Minor,
3. N.SHIVA PRASAD,
S/o. B.S.Nataraja Murthy, Minor,
2
O.S. 4919/1998
The defendants-2 and 3 being
minors, represented by their father
and natural guardian-the defendant
No.1.
The defendants-1 to 3 are residing in
a portion of the premises bearing
No.36 (old No.28), 6th Cross, Azad
Nagar, Chamarajpet,
Bengaluru-560018.
4. SHRI.VEERASHYVA
CO-OPERATIVE SOCIETY
LIMITED, Chamarajapet Branch,
No.36, (old No.28), 6th Cross,
Azad Nagar, Chamarajpet,
Bengaluru-560 018.
5. SRI.CHANDRA @
CHANDRASHEKAR,
Father's name not known
Age: Major,
6. SHRI.NAGARAJU,
Father's name not known
Age: Major,
7. SHRI.S.N.KRISHNA,
Father's name not known
Age: Major,
8. SHRI.D.S.SHADAKSHARI
SWAMY,
Father's name not known
Age: Major,
3
O.S. 4919/1998
9. SHRI.R.SRINIVASA,
Father's name not known
Age: Major,
10.SHRI.NAGARAJU,
S/o. Subbaiah,
Age: Major,
The defendants-5 to 10 are residing
as tenants in different portions of
the premises bearing No.86 (old
No.28), 6th Cross, Azad Nagar,
Chamarajpet, Bengaluru-560 018.
(D-1 to D-3 & D-5 to D-9 : By
Shri.C.Prakash., Advocate.)
(D-4 : By Shri.M.B.Prabhu
Shankar., Advocate.)
(D-10 : placed exparte.)
Date of institution of the 23.06.1998
suit:
Nature of suit: Declaration and
Permanent injunction
Date of commencement of 10.01.2006
Recording the evidence:
Date on which the judgment 03.05.2014
Was pronounced:
4
O.S. 4919/1998
Total Duration : 15-Years, 10-Months &
10-Days.
***
JUDGMENT
The plaintiff has filed this suit against the defendants 1 to 10 seeking Declaration that the registered Cancellation Deed dated 04.09.1962 executed by Shri.R.Shivanna @ Veerabhadrappa; Gift Deed dated 17.10.1962 executed by Shri.R.Shivanna @ Veerabhadrappa in favour of his wife-Smt.Shivamma; Will dated 07.02.1980 executed by Smt.Shivamma in favour of the 1st defendant and the Will dated 22.03.1993 executed by Shri.R.Shivanna @ Veerabhadrappa in favour of the defendants-2 and 3 in respect of the suit properties, and also khatha certificate effected in the name of defendants 2 and 3 as null and void; and further to declare that khata effected in the name of defendant No.2 and 3 in respect of suit property is illegal and null and void; and Further, the plaintiff also prayed for Permanent Injunction restraining the defendants-1 to 3 from collecting monthly rents from the defendants-4 to 10 and Permanent 5 O.S. 4919/1998 Injunction against the defendants-1 to 3 from alienating the suit property with cost.
SUIT SCHEDULE PROPERTY The premises bearing No.36(old No.28), situated at 6th Cross, Azad Nagar, Chamarajapet, Bengaluru, consisting of 8 portions, one portion RCC roofed and remaining tiled roofed measuring East-West 40 feet and North-South 60 feet, bounded on :
East by: House of Hanumanthiah
West by: House of Subramani & Nagaraju
North by: 6th cross road,
South by: Conservancy lane
2. The case of the plaintiff in brief is as under:
The Plaintiff is the absolute owner of the suit property. Shri.R.Shivanna @ Veerabhadrappa acquired the site and he put up construction.6
O.S. 4919/1998 The said Shri.R.Shivanna @ Veerabhadrappa is the father of the plaintiff. Shri.R.Shivanna @ Veerabhadrappa and his wife-Smt.Shivamma were residing in a portion of the suit property along with the plaintiff. They have no other issues except the plaintiff.
Shri. R. Shivanna was doing small business with the assistance of his wife and daughter.
It is stated that Shri. R. Shivanna voluntarily transferred the suit schedule property in the name of the plaintiff-S.Parvathamma and his wife Shivamma jointly under the Settlement Deed dated 12.12.1957, registered in the office of the Sub-Registrar and formal possession was given to them. Since then, the plaintiff and her mother were enjoying the suit property jointly as its absolute owners.
Smt. Shivamma, the mother of the plaintiff died on 18.01.1991. The plaintiff being the co-owner enjoying the suit property along with her mother during her lifetime.
The father of the plaintiff died on 08.05.1996.
After the death of her mother, the plaintiff became the absolute owner of the entire suit property as per the terms and conditions stipulated in the Settlement Deed.
7O.S. 4919/1998 It is further stated that Shri.R.Shivanna and Smt.Shivamma performed the marriage of the plaintiff on 20.06.1962.
The plaintiff was looking after the entire household works, as the mother of the plaintiff was aged and ailing. Few years after the marriage, the plaintiff started to live in a separate house situated nearby the suit schedule property with her husband and was attending to the day to day needs of her aged parents by providing food, clothes etc. The father of the plaintiff was looking after the entire affairs of the suit property, as he was the head of the family with the deemed consent of the plaintiff. The plaintiff could not have made any attempt to get the Khatha of the suit schedule property transferred in her name immediately.
It is pleaded that the defendants-1, 4 to 10 are the tenants in respect of the suit schedule property and were paying monthly rents to the father of the plaintiff at the rate of Rs.600/-, 550/-, 300/-, 150/-, 500/-, 600/- and 100/- respectively.
8O.S. 4919/1998 The defendants-2 and 3 are the minor sons of the defendant-1. It is stated that after the death of the plaintiff's father, the plaintiff came to know pendency of eviction Petition in HRC No.1409/1992 instituted by her father against the 10th defendant.
The plaintiff made an application and came on record as Legal Representative of her deceased father. Subsequently, the defendants-2 and 3 through the defendant-1 also made an application to come on record claiming as the Legal Representatives of the deceased Shri.R.Shivanna under an alleged registered Will dated 22.03.1993. They also made an application to the Bengaluru City Corporation for transfer of Khatha of the suit schedule property in their name by virtue of the alleged Will.
The Assistant Revenue Officer without considering the application of the plaintiff for transfer of Khatha of the suit property has transferred the Khatha in the name of the defendants-2 and 3.
The plaintiff filed an appeal before the Deputy Commissioner, Bengaluru City in Case 9 O.S. 4919/1998 No.JJN.DA.45/KTR/32 of 1996-97. Subsequently, the plaintiff came to know that the Deputy Commissioner dismissed the Appeal. It is stated that the order passed by the Deputy Commissioner is highly illegal and arbitrary and it is against the existing provisions of law. The Deputy Commissioner ought to have referred the matter to the Civil Court for adjudication.
It is stated that after the death of the plaintiff's father, the plaintiff issued Legal Notice to the defendants-1, 4 to 10 demanding to pay monthly rent to her directly. The 1st defendant replied by taking untenable contentions.
Again, the plaintiff issued Legal Notices to the defendants-1, 4 to 9 demanding the arrears of rents. They replied to the said notice taking untenable contentions.
It is further pleaded that the father of the plaintiff was suffering from illness. The defendant-1 being one of the tenants in the suit schedule property by taking undue advantage of the ill health of the father of the plaintiff had stolen all the original documents in respect of the suit schedule property, which were in the custody of the father of the plaintiff.
10O.S. 4919/1998 After the death of the father of the plaintiff, the plaintiff could not trace the original documents. Later, she came to know that the 1st defendant has stolen all the original documents with an illegal intention to knock off the suit schedule property.
The plaintiff lodged complaint with the jurisdictional Police, but the Police have not taken any action.
It is further pleaded that after receipt of reply notice dated 10.07.1996, the plaintiff came to know that the defendants-2 and 3 being the sons of the defendant-1 are claiming right over the suit schedule property under the registered Will dated 22.09.1993 alleged to be executed by the father of the plaintiff.
It is also revealed in the reply notice that registered Settlement Deed 12.12.1957 has been cancelled by the father of the plaintiff under the registered Cancellation Deed dated 4/17.09.1962. The plaintiff applied for the Encumbrance Certificate and obtained the same.
The plaintiff also came to know the execution of the alleged Gift Deed dated 17.10.1962 by her father in favour of his wife-Smt.Shivamma. The plaintiff applied for Certified 11 O.S. 4919/1998 Copies and obtained the same on 17.08.1996. The plaintiff was able to get the Certified Copy of the Will dated 22.09.1993, on 06.03.1998.
The plaintiff came to know the existence of the Will dated 07.02.1980 only on 13.09.1997 when the defendants-2 and 3 have filed their written arguments before the Corporation Authority.
It is stated that the plaintiff is the only legal heir to her parents. The father of the plaintiff executed the registered Settlement Deed dated 12.12.1957 with a condition that the plaintiff and her mother are entitled to enjoy the suit schedule property jointly and if either of the said person dies, their share will devolve upon the another and they can enjoy the same by exercising their independent right of ownership and further, it is stated that they have to look after him till his death and symbolic possession of the suit schedule property was also given to the plaintiff and her mother.
At the time of execution of the Settlement Deed, the plaintiff was being minor aged 14½ years and she attained majority on 05.05.1961.
12O.S. 4919/1998 It is further stated that after the execution and registration of the Settlement Deed, the father of the plaintiff has lost all his rights, interest over the suit property. The father of the plaintiff could not and has no rights to deal with the suit property subsequent to Settlement Deed.
Subsequent transactions in respect of the suit property are illegal in the eye of law and not enforceable and also not binding on the plaintiff and her mother.
The father of the plaintiff had no right to execute the Cancellation Deed by canceling the Settlement Deed dated 12.12.1957. He had no right to execute the Gift Deed dated 17.10.1962 and also the Will dated 07.02.1980 and 22.03.1993. Those documents are not enforceable in the eye of law.
It is stated that the mother of the plaintiff was continuously suffering from illness and had no sound state of body and mind to execute the alleged Will dated 07.02.1980. The mother of the plaintiff had no intention to execute any such document in favour of the defendant No.1.
13O.S. 4919/1998 It is further stated that after the death of his wife, the father of the plaintiff lost his health and stopped the business and just he was wondering here and there aimlessly. Since 3-4 years prior to his death, he was suffering ill health hazards and was having feeble mental capacity.
He was not in a position to execute the alleged Will dated 22.03.1993.
It is stated that the plaintiff acquired half portion of the suit property under the Settlement Deed and acquired another half portion of the suit property by way of succession immediately after the death of her mother The plaintiff became the absolute owner and lawful possession of the suit property being in actual possession and enjoyment of the same. It is stated that the defendant-4 and the defendant-10 are depositing monthly rent in Court in HRC No.1478/1997 and HRC No.1409/1992 respectively.
The other defendants neither paying the monthly rents to the plaintiff nor depositing in the Court and are in due from April 1996 to till date.
14O.S. 4919/1998 Therefore, plaintiff is constrained to file this suit praying above reliefs.
2. After receipt of suit summons D1 to D9 entered appearance through their respective counsels, whereas defendant NO.10 did not enter appearance in spite of service of summons. Hence he is placed exparte.
3. Defendant No.1 B. S. Nataraja murthy and Defendant 2 and 3 have filed common written statement contending inter alia as under:
They denied all the plaint averments except specifically admitted.
It is contended that the plaintiff is the mother of the 1st defendant and grandmother of the defendants-2 and 3.
The 1st defendant denied that he is the tenant in a portion of the suit property. But, he admitted that the defendants-4 to 10 are tenants in respect of the portion of the suit property.
They admitted the execution of the registered Settlement Deed dated 12.12.1957.15
O.S. 4919/1998 It is contended that at the time of execution of the Settlement Deed, the plaintiff was minor, aged about 11 years and the plaintiff was fostered by Shri.R.Shivanna and his wife Smt.Shivamma and the plaintiff is not natural daughter of them.
It is further contended that since the Settlement Deed dated 12.12.1957 was opposed to settled principles of law, the Shivanna was not happy with the contents. So, he got the Cancellation Deed dated 17.09.1962.
The plaintiff married one Shri.Gangadharaiah of her own choice and much against the wishes of her fostered parents. The 1st defendant is the none other than the son of the plaintiff and the said Gangadharaiah.
The 1st defendant was fostered by R.Shivanna and Smt.Shivamma, who had no issues during their lifetime and also got him married to M.Prema.
The defendants-2 and 3 are the sons of the 1st defendant and his wife-Smt.M.Prema.16
O.S. 4919/1998 It is further contended that under the Gift Deed dated 17.10.1962, Smt.Shivamma, executed a registered Will dated 07.02.1980 in favour of the 1st defendant. The said Shivamma died on 18.01.1991.
After the death of his wife, Shri. R. Shivanna having seen the conduct of the plaintiff and also thinking that the 1st defendant may squander the suit schedule property, executed a registered Will dated 22.09.1993 in favour of the defendants-2 and 3.
The plaintiff has no manner of right, title and interest over the suit property. The Corporation Authorities have transferred the Khatha in favour of the 2nd and 3rd defendants. The plaintiff challenged the order by filing an Appeal and the same was dismissed.
It is stated that for the benefit and safeguarding the best interest of the minors, the documents are executed right from 1962 onwards till 1993.
The plaintiff having kept quiet for 37 years and woke up in the year 1998 and claims the property under the Deed 17 O.S. 4919/1998 of 1957. The suit is barred by time and liable to be dismissed on this ground alone.
It is stated that the plaintiff never looked after either Shri.Shivanna or his wife Smt.Shivamma at any point of time during their lifetime. The 1st defendant has looked after Shivanna and Shivamma, who took care with great affection and love towards his fostered parents. The 1st defendant provided medical treatment at his own costs. After the death of Shivanna, the plaintiff started collecting information regarding confirmation of title in favour of the 2nd and 3rd defendants, with a view to lay unjust and unlawful claim over the suit properties.
The 1st defendant is in lawful occupation of one of the portion of the suit property as owner representing the 2nd and 3rd defendants. There is no cause of action for the suit. The suit is not properly valued and Court fee paid is insufficient.
Therefore, it is prayed to dismiss the suit in limine.18
O.S. 4919/1998
4. The defendants-4 to 9, although appeared, they did not file any Written Statement since they are only tenants.
5. On the basis of pleadings of the parties, the following Issues have been framed for consideration and decision:
ISSUES
1. Whether plaintiff proves that the Deed of Cancellation dated 04.09.1962 executed by the father of the plaintiff-Shri.R.Shivanna;
Gift Deed dated 17.10.1962 executed by the father of the plaintiff in favour of Smt.Shivamma, Will dated 07.02.1980 executed by mother of the plaintiff in favour of the defendant No.1 and another Will dated 22.03.1993 executed by the father of the plaintiff in favour of the defendant Nos.2 and 3 are null and void?
2. Whether plaintiff proves that Bengaluru Mahanagara Palike illegally changed the Khatha in the name of defendant No.2 and 3 as per the Khatha Certificate dated 26.12.2000 and house assessment extract dated 26.12.2000?
3. Whether plaintiff proves that the defendants No.1 to 3 are illegally collecting rent from defendants No.4 to 10?
19O.S. 4919/1998
4. Whether plaintiff proves that the defendants No.1 to 3 are illegally trying to alienate the suit property?
5. Whether plaintiff is entitled to the reliefs as prayed for?
6. What Order or Decree?
Addl. Issue framed on 07.03.2011
1. Whether the suit is barred by time?
6. The plaintiff in order to prove the case, got examined herself as P.W.1 and 2 witnesses are examined as P.W.2 and 3 and produced the documents and got marked them as Ex.P.1 to Ex.P.71 and closed her side.
7. On the other hand, 1st defendant got examined himself as D.W.1 and 1 witness is examined as D.W.2 and produced the documents and got marked as Ex.D.1 to Ex.D.67.
8. I heard on both sides, and perused the oral and documentary documents on record.
20O.S. 4919/1998 My findings on the aforesaid Issues are as under :
Issue No.1 - Affirmative Issue No.2 - Affirmative Issue No.3 - Affirmative Issue No.4 - Affirmative Issue No.5 - Affirmative Addl. Issue No.1 - Negative Issue No.6 - As per the final order For the following REASONS
9. ISSUE NO.1 TO 4: Since these issues are interlinked with each other, they are taken up together for joint consideration.
It is a case of plaintiff that she is only daughter of her parents and her father had executed settlement deed in respect of suit property and the registered Cancellation Deed dated 04.09.1962 executed by Shri.R.Shivanna @ Veerabhadrappa; Gift Deed dated 17.10.1962 executed by Shri.R.Shivanna @ Veerabhadrappa in favour of his wife-Smt.Shivamma; Will dated 07.02.1980 executed by Smt.Shivamma in favour of the 1st defendant and the Will 21 O.S. 4919/1998 dated 22.03.1993 executed by Shri.R.Shivanna @ Veerabhadrappa in favour of the defendants-2 and 3 in respect of the suit properties, and also khatha certificate effected in the name of defendants 2 and 3 is illegal and null and void; and defendant No.1 to 3 are collecting the monthly rents from the defendant No.4 to 10 and further they are trying to alienate the suit property illegally.
10. The defendant No.1 to 3 in their written statement denied the averments.
Therefore, the plaintiff has prove these issues and burden of proof is on the plaintiff as per Sec. 101 and 103 of Indian Evidence Act.
11. In this regard, in this case, to substantiate the plaintiff averments, in support of plaintiff case, she himself examined as P.W.1 and two witness are examined as P.W.2 and P.W.3 and got marked the documents as Ex.P.1 to Ex.P.71.
12. The PW.1 Smt. Parvathamma, the plaintiff she stated on her affidavit evidence reiterating the plaint averments.
22O.S. 4919/1998 On perusal of cross-examination of PW.1, made by defendants' counsel, It is noticed that she stated to some suggestions as she is not known. More than that, nothing worthmentioning points are elicited to discredit her evidence. Moreover, she is rustic woman; vague and stray admissions, but it cannot be considered.
13. P.W.2 Sri. Panchakshari, a relative of Veerabhadraiah @ Shivanna, he stated in his affidavit evidence that plaintiff Parvathamma is only daughter of Veerabhadraiah @ Shivanna and Smt. Shivamma, the husband of Parvathamma is no more. Shivanna had transferred suit property in favour of plaintiff by executing a registered document and she succeeded to all the properties left by Shivanna and she let-out the suit schedule building on monthly rents.
In the cross-examination of P.W.2 made by the defendants' counsel, it is noticed that Parvathamma is the daughter of his father's elder brother; Veerabhadraiah @ Shivanna was telling about 15 years back, that he had executed a document in favour of her daughter in respect of suit schedule property.
23O.S. 4919/1998 He further stated that 1st defendant is residing in the suit schedule property as a tenant; P.W.2 stated that on the basis of wedding card school certificate of plaintiff and other documents, he volunteered that the plaintiff is a daughter born out of wedlock between Veerabhadraiah and Shivamma.
Thus, the defendants' counsel failed to elicit anything worth mentioning points to disbelieve the evidence of P.W.2 except negligible points.
14. P.W.3 Nagalingappa M. Badakali, Assistant Medical Records Officer, he deposed that on 28.07.1963, in Vani Vilas Hospital 30 babies were born in all as per Ex.P.69 to P.71, the medical documents and registers and he identified Ex.P.62.
In the cross-examination of P.W.3 made by the defendants' counsel nothing worth mentioning aspects elicited.
15. On the other hand, on behalf of defendants, the 1st defendant B. S. Natarajamurthy got examined himself as 24 O.S. 4919/1998 D.W.1 and examined one witness by name N. Savand kumar as D.W.2 and got marked the documents as Ex.D.1 to D.67.
16. D.W.1 B.S. Nataraja murthy, 1st defendant, he stated on his affidavit evidence reiterating the contentions of written statement.
In the cross-examination of D.W.1 made by the plaintiff' counsel, it is elicited that the suit property is self-acquired property of Veerabhadrappa @ Shivanna; he built 8 houses on the suit property; said Veerabhadrappa had landed property in Kumbalagudu also.
He admitted the suggestion as true that in the year 1957 Veerabhadrappa has executed settlement deed Ex.P.1 in favour of plaintiff-Parvathamma and Shivamma and there was a condition that if any one died prior to another, then, the person alive, get the whole property by way of survivorship and the same day the possession of suit property was handed over to them. He further admitted as true that from that day, the suit property is in their possession.
He admitted as true that on 18.01.1991 Shivamma died and 08.05.1986 Veerabhadrappa died.
25O.S. 4919/1998 He stated that he does not know whether, after marriage of plaintiff with Gangadharaiah, they were residing in one portion of suit property as per Will of her father Veerabhadrappa.
He admitted as true that the plaintiff gave application for change of khata; Veerabhadrappa was filed HRC case No.1409/92 against 10th defendant Nagaraju.
He admitted as true that the plaintiff had issued notices to all the tenants demanding to pay rent and said notice was also given to him; he and other tenants replied.
He admitted as true that in the said reply (Ex.P.50) at first time, he stated regarding the Will executed in favour of his children.
He admitted as true that prior to death of Veerabhadrappa, he was seriously fell ill since from 1½ years, immediately prior to execution of Will. He stated that there was clotting of blood in the brain; there was tumor in kidney; there was fracture of his hips; he was also getting loss of remembering power after lapse of six 26 O.S. 4919/1998 months from the date of starting of illness; he also admitted that at that time he lost of thinking power.
He admitted as true that at present, he is in possession of all the original documents.
He denied suggestion that after death of Veerabhadrappa she performed funeral ceremony (but Ex.P.5 symmetry certification and Ex.P.6 card of Obsequies of Shivanna show that the plaintiff Parvathamma had performed funeral ceremony).
He stated that on the basis of Will, the khata of suit property is changed to the names of his children.
He admitted as true that all the recitals or contents in the Ex.P.1 (Settlement deed dtd. 12.12.1957) are correct.
He unable to say anything regarding, what was the legal impediment for which Ex.P.1 was cancelled.
He stated that he is the faster son, but to show that, there is nothing except the Will. He stated that he is not in possession of original Will executed in favour of his children.
27O.S. 4919/1998 He stated that he had studied upto II P.U.C. He admitted as true that as per Ex.D.66, the marriage invitation card, his marriage was performed on 22.05.1986. He stated that he does not know who is Manjunatha as he stated in his examination-in-chief.
He admitted as true that in HRC No.563/2001, he has given his evidence as per Ex.P.66 and P.67 and it was filed by plaintiff against chandrashekar and he has given his reply as per Ex.P.50.
17. D.W.2 N.Savand Kumar, he stated on affidavit that the plaintiff Parvathamma is the mother of 1st defendant B.S. Nataraja Murthy (D.W.1), having born out of her wedlock with Gangadharaiah.
He further stated that plaintiff is the daughter of his father Nanjappa, out of his wedlock with his 1st wife Nanjamma; he is the son of 2nd wife Shivamma and plaintiff is his elder sister; she was at earlier fostered by Shivanna alias Veerabhadrappa and Shivamma since, they had no issues.
28O.S. 4919/1998 In the cross-examination of D.W.2 made by the plaintiff counsel, it is noticed that he is not Savand Kumar;
he does not know the date and place of birth of 1st defendant and regarding his studies. He is not having any documents to show that plaintiff is his elder sister.
18. In support of plaintiff case, she has produced relevant documents i.e., Ex.P.1 to P.71 Ex.P.1 - Certified copy of Settlement deed dtd. 12.12.1957, on perusal, it is seen that the suit property, in respect of which, a settlement deed is executed by Veerabhadrappa @ Shivanna in favour of his wife Shivamma and his daughter Parvathamma (plaintiff), the relevant recital is extracted as under:
"MlÄÖ ¸ÀévÀÄÛ ¸ÀĪÀiÁgÀÄ JgÀqÀÄ ¸Á«gÀ gÀÆ¥Á¬Ä ¨É¯É ¨Á¼ÀvÀPÀÌzÀÝ£ÀÄß ¤ªÀÄä G¨sÀAiÀÄvÀæjUÀÆ PÉÆnÖgÀÄvÉÛãÉ. ªÀÄvÀÄÛ ¸Áé¢üãÀ ¸ÀºÁ ªÀiÁrgÀÄvÉÛãÉ. ¤ÃªÀÅUÀ½§âgÀÆ eÁ¬ÄAlÄ ºÀPÀÄÌzÁgÀgÁV ¸ÀévÀÛ£ÀÄß C£ÀĨsÀ«¸ÀÄvÀÛ §gÀvÀPÀÌzÀÄÝ ªÀÄvÀÄÛ £À£ÀߣÀÄß PÉÆ£ÉAiÀÄvÀ£ÀPÀ ¥ÉÆö¸ÀvÀPÀÌzÀÄÝ ¤ªÀÄäUÀ¼À ¥ÉÊQ ªÉÆzÀ®£ÉAiÀĪÀgÀÄ AiÀiÁgÀÄ ¥Ëw¥ÀlÎgÀÆ F ¸ÀéwÛ£À ¥ÀÆvÁð ºÀPÀÄÌ G½zÀªÀjUÉ ¸À®èvÀPÀÌzÀÄÝ"
Ex.P.2 - Marriage Invitation Card, pertaining to 29 O.S. 4919/1998 plaintiff Smt. Parvathamma and Gangadharaiah Marriage dtd. . 20.06.1962.
Ex.P.3 - Death Certificate of R. Shivanna, issued by BMP, Ex.P.4 - Death Certificate of Smt. Shivamma Ex.P.5 - Cemetery Report dtd. 10.05.1996, in respect of R. Shivanna; Ex.P.6 - Invitation Card in respect of Obsequies of R. Shivanna, which go to show that the plaintiff Parvathamma has lead in performing the funeral ceremonies of R. Shivanna and her name is also printed in Ex.P.6 Ex.P.7 to 14 - Copies legal notices dtd. 04.07.1996, issued to tenants and Ex.P.15 to 22 - are postal acknowledgements of thereof.
Ex.P.23 to P.28 - Reply Notices and Ex.P.29 to 33 are copies of re-joinder notices.
Ex.P.34 - Copy of police complaint dtd. 10.07.1996, given by the plaintiff Parvathamma to Chamarajapet Police stating that the 1st 30 O.S. 4919/1998 defendant has stolen all original documents in respect of suit property.
Ex.P.35 - School Transfer Certificate of plaintiff S. Parvathamma, on perusal it discloses that her father name is R. Shivanna.
Ex.P.36 - Certified copy of cancellation deed dtd. 04.09.1962, on reading, it is seen that this deed is made by Shivanna and Ex.P.1 settlement deed is cancelled by this cancellation deed for the reasons that plaintiff is minor and settlement deed is illegal.
Ex.P.37 - Certified copy of Gift deed dtd. 17.10.1962, on reading it discloses that this gift deed is executed by Shivanna in favour of his wife Shivamma in respect of suit property.
Ex.P.38 - Certified copy of Will dtd. 22.09.1993, it reveals that it is executed by R. Shivanna in favour of defendant No.2 and 3, the sons of 1st defendant B.S. Natarajamurthy in respect of suit property.
31O.S. 4919/1998 Ex.P.39 - Encumbrance Certificate from the year 1957 to 1996 in respect of transactions of suit property.
Ex.P.40 - Certified copy of Will dtd. 07.07.1980, on perusal, it discloses that it is executed by Smt. Shivamma in favour of 1st defendant B.S. Natarajamurthy regarding the suit property.
Ex.P.41 to P.46 - Photos of suit property along with negatives.
Ex.P.47 - Certified copy of order in R.A.(s) 130/2000-01, on going through this order, it is seen that the present plaintiff has filed R.A. as appellant before A.C. Court and the entries made in RTCs in the name of respondent No.3 to 5 by virtue of IHC No.8/1996-97 are set-aside and cancelled and the Tahsildar, Bangalore South Taluk is directed to effected the inheritance Khata (Pavathi Khata) in the name of appellant Parvathamma by allowing the appeal.
32O.S. 4919/1998 Ex.P.48 - Khata Certificate dtd. 26.12.2000, issued by BMP in respect of suit property in the name of N. Akshaya and N. Shivaprasad, minor guardian, B.S. Natarajamurthy and M. Prema.
Ex.P.49 - Assessment Register Extract dtd. 26.12.2000, it is also standing in the name of above persons.
Ex.P.50 - Reply notice of 1st defendant dtd.
10.07.1996, Ex.P.51 to P.57 are copies of notices issued to defendants and Ex.P.58 to P.61 are postal acknowledgments thereof.
Ex.P.62 - Letter dtd. 30.11.2009 issued by Vani vilas Hospital regarding date of birth certificate.
Ex.P.63 - Letter dtd. 28.01.2010 issued by S.L.N. College of Arts and Commerce furnishing sought details of 1st defendant B.S. Natarajamurthy as per Ex.P.64, stating that the date of birth is 27.08.1962 and his father R. Shivanna; Ex.P.65 charge receipt thereof.
33O.S. 4919/1998 Ex.P.66 - Certified copy of Marriage Invitaton card of B. S. Nataraju (1st defendant) and Mahadevamma (Prema) Ex.P.67 - Certified copy of Deposition of B.S. Natarajamurthy in HRC No.563/2001 Ex.P.68 - Letter dtd. 29.11.2010, issued by Vanivilas Hospital.
Ex.P.69 to P.71 - Register extract of Vanivilas Hospital.
19. In this instant case, the defendants have also relied and got marked 67 doucments i.e. Ex.D.1 to Ex.D.67.
Ex.D.1 - Deposition of S. Parvathamma on I.A. No.2 in HRC No.563/2001.
Ex.D.2 - Complaint given by plaintiff- Smt. Parvathamma to Police Commissioner against the defendant No.1 - B.S. Natarajamurthy Ex.D.3 - Certified copy of sheet in O.S. 1710/2007.
34O.S. 4919/1998 Ex.D.4 - Certified copy of plaint in O.S. 1710/2007.
Ex.D.5 - Certified copy of I.A. U/O 39 Rule 1 and 2 of CPC in O.S.1710/2007.
Ex.D.6 - Birth certificate issued by Vanivilas Hospital stating that the Parvathamma gave birth to a male baby on 28.07.1963.
Ex.D.7 - Identity card of R. Shivanna issued by Veerashaiva Sahakara Bank.
Ex.D.8 - Death Obsequies Card dtd.
18.05.1996 of R. Veerabhadrappa (R. Shivanna) Ex.D.9 - Tax paid receipt in the name of R. Shivanna.
Ex.D.10 - Tax paid receipt in the name of R. Shivanna for the year 1990-91 Ex.D.11 - Tax paid receipt in the name of R. Shivanna.
Ex.D.12 - Tax paid receipt in the name of R. 35 O.S. 4919/1998 Shivanna.
Ex.D.13 - Tax paid receipt in the name of R. Shivanna for the year 1990-91 Ex.D.14 - Tax paid receipt in the name of R. Shivanna.
Ex.D.15 - Tax paid receipt in the name of R. Shivanna for the year 1987-88 Ex.D.16 - Tax paid receipt in the name of R. Shivanna for the year 1981-82 Ex.D.17 - Tax paid receipt in the name of R. Shivanna for the year 1978-79 Ex.D.18 - Deposit (Dasoha) made in Sri. Jagadguru Trust dtd. 15.08.1993 by R. Shivanna.
Ex.D.19 - Medical Prescription Slip - Amar Nursing Home of R. Shivanna.
Ex.D.20 - Medical Prescription Slip - NIMHANS of R. Shivanna 36 O.S. 4919/1998 Ex.D.21 - Medical Prescription Slip - Amar Nursing Home of R. Shivanna.
Ex.D.22 - Medical Prescription Slip - NIMHANS of R. Shivanna.
Ex.D.23 to 34 - Medical Prescription Slip - Amar Nursing Home of R. Shivanna.
Ex.D.35 to 58 - Medical bills of R. Shivanna.
Ex.D.59 to 65 - Photos; and Ex.D.66 - receipt Ex.D.67 - Copy of Police Complaint given by 1st defendant against Parvathamma.
20. In the present case, the plaintiff is strongly relied upon Ex.P.1 Settlement/release deed. On contrary, the defendants are relied upon deed of cancellation dated 04.09.1962; gift deed dtd. 17.10.1962; Will dtd. 07.02.1980 and another Will dtd. 22.03.1993.
21. In this regard, the question arises as to whether the Shivanna @ Veerabhadrappa was any subsisting right to cancel the settlement/release deed Ex.P.1 and to execute gift 37 O.S. 4919/1998 deed dtd. 17.10.1962 in favour of his wife Shivamma and another Will dtd. 22.03.1993 in favour of defendant No.2 and 3.
And further, whether the Shivamma was having any absolute right to execute the Will dtd. 07.02.1980 in favour of 1st defendant and those so-called Wills are valid or not?
22. In this regard, if the cancellation of settlement deed is valid, then the subsequent transactions made by Shivanna are valid, if the cancellation of settlement deed itself is invalid in the eye of law, then all the subsequent transactions made by him i.e. gift deed dtd. 17.10.1962 executed in favour of his wife Smt. Shivamma and Will dtd. 22.03.1993 executed by him in favour of defendant No.2 and 3 will be ab-initio void.
Therefore, at first we should consider as to whether the cancellation of settlement made by R. Shivanna @ Veerbhadraiah is valid in the eye of law or not?
i. In this context, it is useful to refer a decision relied by the learned counsel appearing for plaintiff in support of his argument in BINNY MILL LABOUR WELFARE HOUSE BUILDING CO-OPERATIVE SOCIETY LTD. VS. D.R. 38 O.S. 4919/1998 MRUTHUNJAYA ARADHAYA (ILR 2008 KAR 2245), wherein the Hon'ble Karnataka High Court has held that :
Specific Relief Act, 1963 - Section 31 - Cancellation of sale deed under - unilaterally cancellation of sale deed by a vendor who had executed the sale deed - legality of cancellation - HELD if after execution and registration of the sale deed the owner wants to get back the property, it has to be done by canceling the sale deed on any of the grounds which are available to him under the provisions of Indian Contract Act.
Unilaterally, he cannot execute what is styled as a deed of cancellation because the date of execution and registration of the deed of cancellation said person has no right or interest in that property.
Further held, in the case of the sale deed executed and registered the owner completely looses his right over the property and the purchaser becomes the absolute owner. It cannot be nullified by executing a deed of cancellation because, the properties are being vested with the purchaser and the title cannot be divested by mere execution of a deed of cancellation.39
O.S. 4919/1998 Therefore, even by consent or agreement between the purchaser and vendor said sale deed cannot be annulled. If purchaser wants to give back the property it has to be by another deed of conveyance.
If the deed is vitiated by fraud or other grounds mentioned in the contract act, there is no possibility of parties agreeing by mutual consent to cancel the deed. It is only the court which can cancel the deed duly executed under the circumstances mentioned in Sec. 31 and other provisions of Specific Relief Act, 1963. Therefore, the power to cancel a deed vests with a court and it cannot be exercised by the vendor of a property.
ii. It is also profitable to refer another decision relied by plaintiff counsel in KASHI REDDY RAMAYAMMA Vs. KASHI REDDY RAMA RAO (AIR 2000 ANDHRA PRADESH 29), wherein Hon'ble Andhra Pradesh Court is held as under :
Suit for partition - claim based on settlement deed
- validity of deed cannot assailed on plea of fraud and misrepresentation.40
O.S. 4919/1998 iii. It is also helpful to refer a ruling in GARAGABOYINA RADHAKRISHNA & ANR. VS. DISTRICT REGISTRAR, VISAKHAPATNAM & ORS. (AIR 2012 A.P.190), wherein, the Hon'ble Andhra High Court held that :
(A) Transfer of property Act (4 of 1882), S.123 -
Cancellation of gift deed - once transfer of immovable property by way of gift is complete, it can be cancelled only with participation of both parties - Cancellation of gift deed in absence of consent or participation of donees, improper.
iv. This decision is also supported by the ruling of Hon'ble Supreme Court is civil appeal No.317/07, wherein, the Hon'ble Apex Court is held that "The cancellation of a sale deed or other deeds of transfer without participation of all the parties to it cannot be sustained in law".
v. It is also advantageous to quote a authority regarding revocation of settlement deed in KASHI GOUNDER Vs. CHINNAPPAIAH GOUNDER (AIR 2002 MADRAS 4), 41 O.S. 4919/1998 wherein Hon'ble Madras High Court as observed and held as follows :
"It is evidently clear that settlement deed was duly executed by in favour of plaintiff and when once it has been executed, she has no power to cancel the same. Even assuming that the plaintiff had failed to maintain her as contended in the Revocation deed. I am of the view, it is not a ground to revoke the document under the circumstances, the reliance upon the subsequent settlement deed by the defendant in his favour of no use - The plaintiff has got title to the property and under the circumstances, plaintiff is also entitled to recovery of possession".
From the above rulings, it is crystal clear that although, when a gift deed/settlement deed is executed is almost a unilateral transaction, but without consent on participation of donee/concerned, it cannot be cancelled, under any circumstances. The principle of estoppel gets attracted in such matters.
23. The contention of defendant No.1 to 3 that since at the time of execution of settlement deed the plaintiff 42 O.S. 4919/1998 Parvathamma was minor, there was legal impediment; but it cannot be accepted.
i. In this regard, it is useful to refer a ruling in CHAUDHARY RANESAR V VS. SMT. PRABHAWATHI PHOOL CHAND (AIR 2012 ALLAHABAD 173), wherein, Hon'ble Allahabad High is held as under :
"Even an assuming minority of donee on the date of execution of gift deed, gift would not be invalidated for lack of acceptance by another guardian or next friend, as acceptance can be implied by conduct of donee.
IT IS FURTHER HELD THAT the donee entered into possession of land on the day of execution of gift deed - even otherwise assuming that actual/physical possession remained with donor father then also, gift could not have been invalidated considering relationship of father and daughter.
ii. It is also profitable to refer another authority in K. BALAKRISHNAN Vs. K. KAMALAM (2004)1 SCC 581 AIR 1257, wherein Hon'ble Apex Court after noticing number of authorities, in paragraph 30 of its judgment held as under:43
O.S. 4919/1998 "As seen above, in the case of minor donee receiving a gift from her parents, no express acceptance can be expected and is possible and acceptance can be implied even by mere silence or such conduct of minor donee and is other natural guardian as not to indicate any disapproval or repudiation of it".
From the supra noted authorities, it is manifestly clear that even if the party was minor as on the date of execution of gift deed / settlement deed, such deed would not be invalidated for lack of acceptance and there is no legal impediment to execute such deed in favour of minor. Therefore, I can safely conclude that R. Shivanna @ Veerabhadrappa, the father of plaintiff has no subsisting right to cancel the settlement deed executed by him on 12.12.1957 and further to execute so-called gift deed dtd. 17.10.1962 in favour of his wife Smt. Shivamma; as such, under the facts and circumstances, deed of cancellation dtd. 04.09.1962 and gift deed dtd. 17.10.1962 are ab initio null and void.
44O.S. 4919/1998
24. At this juncture, the learned counsel appearing for the defendant No.1 to 3 has relied upon following rulings in support of their case.
1. AIR 1965 S.C. 825 (V.52 C.128)
2. AIR 1968 PATNA 487.
3. AIR 1974 CALCUTTA 283 (V.61,C.63)
4. AIR 2003 ALLHABAD 276.
5. AIR 2004 S.C. 1596.
6. AIR 1972 ALLAHABAD 276
25. I have gone through supra noted decisions, there is no dispute regarding principles laid down, but those rulings are not applicable to the facts, circumstances and situation of this case on the same footing; the argument of defendant's counsel that the settlement deed is not acted upon, cannot be accepted; since the plaintiff-Parvathamma is daughter of R. Shivanna, it can be presumed that she instructed R. Shivanna to manage the suit property on her behalf.
26. Next point arises for my consideration is as to whether Smt. Shivamma can execute a valid Will in favour of 1st defendant and R. Shivanna @ Veerabhadrappa was having any subsisting right to 45 O.S. 4919/1998 execute a Will dtd. 22.03.1993 in favour of 2nd and 3rd defendant?
27. In this regard, it is relevant and profitable to extract relevant recital of Ex.P.1 settlement deed, which reads as under :
"MlÄÖ ¸ÀévÀÄÛ ¸ÀĪÀiÁgÀÄ JgÀqÀÄ ¸Á«gÀ gÀÆ¥Á¬Ä ¨É¯É ¨Á¼ÀvÀPÀÌzÀÝ£ÀÄß ¤ªÀÄä G¨sÀAiÀÄvÀæjUÀÆ PÉÆnÖgÀÄvÉÛãÉ. ªÀÄvÀÄÛ ¸Áé¢üãÀ ¸ÀºÁ ªÀiÁrgÀÄvÉÛãÉ. ¤ÃªÀÅUÀ½§âgÀÆ eÁ¬ÄAlÄ ºÀPÀÄÌzÁgÀgÁV ¸ÀévÀÛ£ÀÄß C£ÀĨsÀ«¸ÀÄvÀÛ §gÀvÀPÀÌzÀÄÝ ªÀÄvÀÄÛ £À£ÀߣÀÄß PÉÆ£ÉAiÀÄvÀ£ÀPÀ ¥ÉÆö¸ÀvÀPÀÌzÀÄÝ ¤ªÀÄäUÀ¼À ¥ÉÊQ ªÉÆzÀ®£ÉAiÀĪÀgÀÄ AiÀiÁgÀÄ ¥Ëw¥ÀlÎgÀÆ F ¸ÀéwÛ£À ¥ÀÆvÁð ºÀPÀÄÌ G½zÀªÀjUÉ ¸À®èvÀPÀÌzÀÄÝ"
28. As per above noted recitals of Ex.P.1 settlement deed, the suit property is transferred by Shivanna in favour of his daughter plaintiff Parvathamma and his wife Smt. Shivamma jointly and there is a specific recital that if any one died, the survivor or the person who outlives another Will get absolute right in the suit property by way of survivorship. As such, since Smt. Shivamma is died prior to death of plaintiff Smt. Parvathamma, Smt. Parvathamma has got absolute right in the suit property by way of 46 O.S. 4919/1998 survivorship. Smt. Shivamma cannot alienate the suit property by executing a so-called Will.
29. Moreover, Will dated 07.02.1980, alleged to be executed by Smt. Shivamma and the so-called Will alleged to be executed by R. Shivanna are not proved in accordance with law.
Mere registration of Wills is not a proof; and as per law Will need not be registered; but two attesting witnesses to the Will are required according to law and to prove the contents, the examination of those attesting witnesses is mandatory.
iii. At this juncture, in this context, it is relevant to quote a ruling in Ishwar Dass Jain (dead) through LR Vs. Sohanlal (dead) by LRs, (AIR 2000 SC 426), wherein the Hon'ble Apex Court is observed and held as under :
"In case the document is registered then except in the case of a Will it is not necessary to call an attesting witness, unless the execution has been specifically denied by the person by whom it purports to have been executed".47
O.S. 4919/1998 iv. At this Juncture, it is also profitable to extract the relevant provision of Section 68 of Indian Evidence Act 1872 and it reads as under :
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 witness 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 the Court and capable of giving evidence.
3[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.] v. In this regard it is helpful to refer a decision in Janakinarayan Bhoir Vs. Narayana Namdeo Kadam (AIR 2003 SC 761), wherein, the Hon'ble Apex Court is held as under 48 O.S. 4919/1998 "One witness of the requirements of due execution of Will is its attestation by two or more witnesses which is mandatory. Section 68 speaks of as to how a document required by law to be attested can be proved. It flows from this section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence".
From the afore noted rulings, it is crystal clear that the attesting witnesses to the Will should be examined in the court to prove the contents of will. It is not the case of defendant No.1 to 3 that the attesting witnesses to the Wills are died.
30. The contents of the aforesaid Wills are not proved by examining the attesting witnesses as required by law i.e. Sec. 65 and 68 of Indian Evidence Act, 1872. It is important to note that the defendant No.1 to 3 have themselves produced medical prescriptions, bills and reports of R. Shivanna and D.W.1 himself admitted in his cross-examination that R. Shivanna was suffering from 49 O.S. 4919/1998 illness, since from 1½ years prior to his death. Therefore, it is inevitable to hold that R. Shivanna was not in a sound and disposing mind and further he was not having any subsisting right in respect of suit property to execute a Will in favour of defendant No.2 and 3 and Smt. Shivamma was having only joint surviving right in the suit property. Therefore, under the facts and circumstances of this case, the Will dtd. 07.02.1980 alleged to be executed by Smt. Shivamma in favour of 1st defendant and another Will dtd. 22.03.1993 alleged to be executed by R. Shivanna in favour of 2nd and 3rd defendant are not valid and null and void in the eye of law.
The contention of the defendants 1 to 3 is that, plaintiff has to seek for possession of the suit property, but it is not sustainable.
i. In this regard, it is useful to refer a decision relied by learned counsel appearing for plaintiff in YAMUNA BAI AND ANOTHER VS. RAM MAHARAJ AND OTHERS (AIR 1960 BOMBAY 463), wherein, Hon'ble Bombay High Court is held as under :
50O.S. 4919/1998 "The possession contemplated the Sec.14 is legal possession and property in the wrongful occupation of a trespasser either directly or through his tenants is none the less possessed by a Hindu female within the meaning of Sec. 14.
IT IS FURTHR HELD THAT where the defendants are in constructive possession through tenants and possession desiring to obtain constructive possession only, the suit for declaration of rights (title) coupled with an injunction preventing them from interfering with such rights is maintainable and plaintiff is not bound to ask for actual, physical possession from the tenants and there is no rule of law to compel a man to seek for all the relief that he is entitled to".
ii. It is also profitable to refer another decision relied by plaintiff counsel in SMT. CHANDANIA VS. GYAN CHAND AND OTHERS (AIR 1989 ALLAHABAD 75), wherein, Hon'ble Allahabad High Court has held as follows :
"plaintiff claiming to be lawful owner of property in dispute which was in possession of tenants -
plaintiff obstructed from realising rent by 3rd person - A suit for mere declaration without 51 O.S. 4919/1998 asking for possession against person denying the plaintiff's right to realise rent would not be barred by Sec. 34 of Specific Relief Act, 1963"
From the supra noted decision, it is crystal clear that plaintiff need not seek for possession from the so-called tenants, because the case of the plaintiff is that the defendant No.1 to 10 are tenants in the suit property and therefore, I find no substance in the contention of defendant No.1 to 3.
Regarding contention of 1st defendant that he is the son of plaintiff-Parvathamma, there is no supporting documents to substantiate this aspect. The date of birth of 1st defendant as per Ex.P.64 is 27.08.1962 and his father is mentioned as R. Shivanna and the date of marriage of plaintiff Parvathamma with Gangadharaiah is on 20.06.1962, as such it is highly impossible even to presume that he has born to plaintiff Parvathamma and no satisfactory explanation is forthcoming at the side of 1st defendant as to why the plaintiff is refusing him to accept as her son; moreover, if he is really the son of plaintiff Parvathamma, he could have been examined Gangadharaiah, the husband of plaintiff; above all, the 52 O.S. 4919/1998 Ex.P.64 misleads that his father is R. Shivanna. Therefore, I am unable to accept the contention of the 1st defendant that he is the son of plaintiff Parvathamma.
It is important to note that Ex.P.1 settlement deed dtd. 12.12.1957 is admitted document and its contents are also not in dispute.
For the reasons stated above, under the facts and circumstances of this case, in the light of the supra noted rulings, I hold and record my findings on issue No.1 in the affirmative.
31. In so far as Issue No.2 that Khata certificate dtd.26.12.2000 and House assessment extract dtd. 26.12.2000 are illegally changed in the name of defendant No.2 and 3 is concerned, in view of my clear and categorical finding on Issue No.1, it is inevitable to hold that plaintiff-Parvathamma is absolute owner of suit property after death of Shivamma.
32. In the Ex.P.48-Khata Certificate dtd. 26.12.2000 and House assessment register extract dtd. 26.12.2000, there is no mention by the BMP that on what basis the 53 O.S. 4919/1998 name of 2nd and 3rd defendant is entered in the Khata certificate and House assessment register extract.
33. It is significant to note that it is settled law that mere Khata and tax paid receipts without documents of title are having no any validity in the eye of law.
34. It is to be noted that prior to registering the Khata in the name of defendant No.2 and 3, they should have been proved the contents of Will; since, Will is not proved; it should be held that Khata and House assessment extract standing in the name of Defendant No.2 and 3 are illegal. Hence, I hold and record my findings on Issue No. 2 in affirmative.
35. In so far as Issue No.3 that, he defendant No.1 to 3 are illegally collecting the rent from the defendant No.4 to 10 is concerned, it is admitted fact that defendant No.4 to 10 are tenants residing in the different portions of suit property.
36. The Ex.P.7 to 14 are notices issued by the plaintiff Parvathamma calling upon the defendant No.4 to 10 to pay the rents to her; and Ex.P.23 to 28 are replies given by them 54 O.S. 4919/1998 and they admit that they are tenants in the portions of suit property and they also admitted that they are the tenants inducted by R. Shivanna and they have clearly acknowledged their liability to pay rents; but it is the contention of defendant No.4 to 10 that the defendant No.1 to 3 are also demanding rents from them by claiming ownership over the suit property, on the basis Ex.P.38 Will of Shivanna dtd. 22.03.1993.
37. Since I already held that Ex.P.38 Will dated 22.03.1993 executed by Shivanna is null and void because he was not having any subsisting right over the suit property and further said Will is also not proved by examining at least one of the attesting witnesses therein; the defendant No.1 to 3 are not having any right to claim ownership over the suit property and to demand rents from the defendant No.4 to 10; the demanding and collecting of rents from the defendant No.4 to 10 by the defendant No.1 to 3 is held to be illegal. Collecting the rent by the defendant No.1 to 3 from defendant No.4 to 10 can be termed as unlawful gain and which is impermissible under law. Hence, it is inevitable to hold and record my findings on this Issue No.3 in affirmative.
55O.S. 4919/1998
38. In so far as Issue No.4 that the defendant No.1 to 3 are illegally trying to alienate the suit property is concerned, The Khata and House assessment extract are obtained in the name of defendant No.2 and 3, it is to be inferred that in order to avoid consequences, at any time the defendant No.1 to 3 can alienate the suit property in favour of 3rd parties.
39. Since I already held that defendant No.1 to 3 are not having any right, title and interest over the suit property and they are total strangers of plaintiff family, and plaintiff Parvathamma is absolute owner of suit property by way of survivorship under Ex.P.1 settlement deed, it is to be held that any attempt by them to sell or alienate the suit property Will be illegal. Therefore, it is inevitable to hold and record my findings on this Issue No.4 in affirmative
40. ADDITIONAL ISSUE NO.1 : It is a case of defendant No.1 to 3 that this suit filed by the plaintiff is barred by time.
In this suit, the plaintiff has sought for declaration that the cancellation deed dtd. 04.09.1962 (Ex.P.36); Gift deed dtd. 17.10.1962(Ex.P.37); Will dtd. 07.02.1980 56 O.S. 4919/1998 (Ex.P.40); another Will 22.03.1993(Ex.P.38) are null and void. The suit for declaration is governed by Article 58 of Limitation Act and which prescribes 3 years as period of limitation; the period beings to run from the date of cause of action first accrues/arose or when the right to sue accrues.
41. At this juncture, in this context, the learned counsel appearing for the plaintiff has relied upon following rulings in support of his case.
i. It is useful to refer a ruling relied by the plaintiff counsel in Daya Singh & Anr. Vs. Gurudev Singh through LRs (2010 AIR SCW 689), wherein, the Hon'ble Apex Court has held as under :
"Limitation Act (36 of 1963), Art.58 - Suit for declaration - Limitation - Wrong entry in revenue records - Plaintiffs seeking declaration that they were in possession of land as owners and entry in revenue record should be corrected - Right to sue accrues when there was clear and unequivocal threat to infringe that right by defendants by their refusal to admit claim of plaintiffs only seven days before filing suit -Question of filing suit before right accrued to them by compromise could 57 O.S. 4919/1998 not arise until and unless infringement of that right was noticed by one of parties - Suit filed within three years from date of infringement is not barred by limitation - finding that suit filed after 18 years of entering into compromise was barred by limitation - Is liable to be set aside (Similar view is reiterated in case of C. Mohammed Yunus Vs. Syed Unnissa and others - AIR 1961 SC 808).
ii. It is also profitable to refer another ruling relied by plaintiff counsel in State of Karnataka Vs. Mohammed Kunhi (I.L.R. 1991 KAR 1500), wherein, the Hon'ble High Court of Karnataka has held as follows :
LIMITATION ACT, 1963 (Central Act No.36 of 1963)
- Article 58 - Limitation Act, 1908 (Central Act No.9 of 1908) - Article 120 - Scope and Distinction - 'First' after 'right to sue' in column 3 of Article 58 not found in Article 120 - Not each and every entry in Record of Rights gives rise to cause of action - Mere adverse entry in respect of property in possession of plaintiff not real threat to right of plaintiff to the property in his possession.58
O.S. 4919/1998 From the supra noted authorities, it is evidently clear that real threat to the plaintiff's right and title in respect of property in question; should be taken into account while counting the period of limitation.
42. It is important to note that it is the case of plaintiff that even after execution of Ex.P.1 settlement deed, she asked her father R. Shivanna to lookafter the suit property on her behalf and he was managing the property on her behalf and he inducted tenants and collecting rents and he filed HRC Eviction cases against the tenants; under Karnataka Rent Control Act, 1961, in the definition of Landlord, rent collector is also included.
43. It is significant to note that the execution of Ex.P.36, P.37, P.38 and P.40 are all covert acts and same are not within the knowledge of plaintiff. It is only in the year 1997, the defendant No.2 and 3 tried to come on record in HRC Eviction cases filed by R. Shivanna against the tenants; the notices sent by the plaintiff to the tenants as per Ex.P.7 to P.14 and they replied as per Ex.P.23 to 28 only in the year 1996-97 and in the reply only the plaintiff came to know at first time about the alleged documents sought for declaration by the plaintiff to be null and void.
59O.S. 4919/1998
44. The real threat/danger to the right and title of the plaintiff have been caused when the defendant No.2 and 3 are tried to come on record as LRs of R. Shivanna in HRC Eviction cases only in the year 1997 by asserting their right/title. Therefore, I can safely conclude that right to sue to the plaintiff arose 1st time only in the year 1997 and this suit is within one year from that date; the principles laid down in the supra noted authorities are squarely applicable to the facts, circumstances and situation of this case on the same footing and I inclined to follow.
45. For the reasons stated above, in the light of rulings under the facts and circumstances of this case. I hold that this suit is well within the limitation period and accordingly, I record my findings on this additional issue No.1 in Negative.
46. ISSUE NO.5 AND 6 : In view of my findings on Issue No.1 to 4 and additional issue No.1 and discussions and foregoing reasons, under the facts and circumstances of this instant case, in the light of rulings, I am of the considered opinion and inclined to hold that the plaintiff is 60 O.S. 4919/1998 entitled to the reliefs as already held. It is fit case to grant such reliefs, since there is sufficient and satisfactory oral and documentary evidence on record to the required civil standard or preponderance of probabilities. Accordingly, I answered aforesaid issues and proceed to pass the following:
ORDER In the result, therefore this suit filed by the plaintiff against the defendants is hereby decreed with cost.
ii. Consequently, it is hereby declared that the registered Cancellation Deed dated 04.09.1962 executed by Shri.R.Shivanna @ Veerabhadrappa and Gift Deed dated 17.10.1962 executed by Shri. R.Shivanna @ Veerabhadrappa in favour of his wife-Smt.Shivamma and Will dated 07.02.1980 executed by Smt.Shivamma in favour of the 1st defendant and another Will dated 22.03.1993 executed by Shri.R.Shivanna @ Veerabhadrappa in favour of the defendants-2 and 61 O.S. 4919/1998 3 in respect of the suit properties are null and void.
iii. Further, the khatha certificate dtd. 26.12.2000 and House Assessment Register extract dtd. 26.12.2000 effected in the name of defendants 2 and 3 are hereby declared as illegal and null and void.
iv. Further, an order of Permanent Injunction is hereby granted in favour of plaintiff against the defendant No.1 to 3 restraining them or anybody claiming through them from collecting monthly rents from the defendants-4 to 10 (tenants) in respect of tenements in their occupation in the suit property.
v. Furthermore, an order of Permanent Injunction is hereby granted in favour of plaintiff against the defendant No.1 to 3 or anybody claiming through them from alienating the suit property or any portion of it as prayed.
Draw decree accordingly.
62O.S. 4919/1998 (Dictated to the Stenographer, directly over computer, typed matter, corrected, signed and then pronounced by me in open Court on this the 3rd day of May, 2013.) (MASTER R.K.G.M.M. MAHASWAMIJI) VIII Additional City Civil & Sessions Judge, Bangalore.
ANNEXURE List of witnesses examined on behalf of the plaintiff with date of examination:-
P.W.1- Smt.S.Parvathamma - 10.01.2006.
P.W.2- Shri.Panchakshari - 01.10.2008.
P.W.3- Shri.Nagalingappa M.Badakali- 01.12.2010.
List of witnesses examined on behalf of the defendants with date of examination:-
D.W.1 - Shri.B.S.Nataraja Murthy - 01.09.2009.
D.W.2 - Shri.N.Savandkumar - 18.06.2010.
List of Documents marked on behalf of the plaintiff:-
Ex.P.1 : Certified Copy of Settlement Deed dated 12.12.1957.
Ex.P.2 : Marriage Invitation Card.
63 O.S. 4919/1998 Ex.P.3 : Death Certificates. Ex.P.4 Ex.P.5 : Cemetery Certificate. Ex.P.6 : Invitation Card in respect of obsequies. Ex.P.7 : Copies of Notices issued to the To tenants. Ex.P.14 Ex.P.15 : Postal Acknowledgments. To Ex.P.22 Ex.P.23 : Replies. To Ex.P.28 Ex.P.29 : Copies of Rejoinder. To Ex.P.33 Ex.P.34 : Copy of Complaint. Ex.P.35 : School Transfer Certificate. Ex.P.36 : Certified Copy of Cancellation Deed dated 04.09.1962. Ex.P.37 : Certified Copy of Gift Deed dated 17.10.1962. Ex.P.38 : Certified Copy of Will dated 29.09.1993. Ex.P.39 : Encumbrance Certificate. Ex.P.40 : Certified Copy of Will dated 07.02.1980. Ex.P.41 : Photographs. To Ex.P.46 Ex.P.41(a): Negatives. To Ex.P.46(a) Ex.P.47 : Certified Copy of Order in RA 64 O.S. 4919/1998 No.130/2000-01. Ex.P.48 : Khatha Certificate. Ex.P.49 : Assessment Register Extract. Ex.P.50 : Reply. Ex.P.51 : Copies of Notices. To Ex.P.57 Ex.P.58 : Acknowledgments. To Ex.P.61 Ex.P.62 : Medical Certificate. Ex.P.63 : Letter of SLN College dated 28.01.2010. Ex.P.64 : Intimation Letter dated 28.01.2010 issued by the SLN College. Ex.P.65 : Receipt. Ex.P.66 : Copy of Marriage Invitation. Ex.P.67 : Certified Copy of Deposition in HRC No.563/2001. Ex.P.68 : Letter dated 29.11.2010 from Vanivilas Hospital. Ex.P.69 : Certified Copies of Medical Hospital To Records. Ex.P.71
List of Documents marked on behalf of the Defendants:-
Ex.D.1 : Certified Copy of Deposition of
Smt.S.Parvathamma in HRC
No.563/2001.
Ex.D.2 : Copy of Complaint .
Ex.D.3 : Certified Copy of Order Sheet in
OS.1710/2007.
Ex.D.4 : Certified Copy of Plaint in
OS.1710/2007.
65
O.S. 4919/1998
Ex.D.5 : Certified Copy of IA No.1 in
OS.1710/2007.
Ex.D.6 : Birth Certificate of
Smt.Parvathamma.
Ex.D.7 : Membership Card.
Ex.D.8 : Invitation Card of obsequies.
Ex.D.9 : Copies of Tax Paid Receipts.
To
Ex.D.17
Ex.D.18 : Receipt for Fixed Deposit.
Ex.D.19 : Prescription issued by the Amar
Nursing Home.
Ex.D.20 : Prescription issued by the National
Institute of Mental Health & Neuro
Sciences.
Ex.D.21 : Prescriptions & Receipts.
To
Ex.D.58
Ex.D.59 : Photos with negatives.
To
Ex.D.65
Ex.D.66 : Bill for having paid Studio Bill.
Ex.D.67 : Copy of Complaint.
(MASTER R.K.G.M.M. MAHASWAMIJI)
VIII Additional City Civil & Sessions Judge, Bangalore.66
O.S. 4919/1998 03.05.2014 P-GSP D1 to 3, 5 to 9 - CP D4 - MBP D10 - ex parte For Judgment (The following Judgment pronounced in the open Court vide separate) ORDER In the result, therefore this suit filed by the plaintiff against the defendants is hereby decreed with cost.
ii. Consequently, it is hereby declared that the registered Cancellation Deed dated 04.09.1962 executed by Shri.R.Shivanna @ Veerabhadrappa and Gift Deed dated 17.10.1962 executed by Shri. R.Shivanna @ Veerabhadrappa in favour of his wife-Smt.Shivamma and Will dated 07.02.1980 executed by Smt.Shivamma in favour of the 1st defendant and another Will dated 22.03.1993 executed by Shri.R.Shivanna @ 67 O.S. 4919/1998 Veerabhadrappa in favour of the defendants-2 and 3 in respect of the suit properties are null and void.
iii. Further, the khatha certificate dtd. 26.12.2000 and House Assessment Register extract dtd. 26.12.2000 effected in the name of defendants 2 and 3 are hereby declared as illegal and null and void.
iv. Further, an order of Permanent Injunction is hereby granted in favour of plaintiff against the defendant No.1 to 3 restraining them or anybody claiming through them from collecting monthly rents from the defendants-4 to 10 (tenants) in respect of tenements in their occupation in the suit property.
v. Furthermore, an order of Permanent Injunction is hereby granted in favour of plaintiff against the defendant No.1 to 3 or anybody claiming through them from alienating the suit property or any portion of it as prayed.
Draw decree accordingly.
68O.S. 4919/1998 (MASTER R.K.G.M.M. MAHASWAMIJI) VIII Additional City Civil & Sessions Judge, Bangalore.