Karnataka High Court
Lalitha vs Sheena G. Suvarana on 25 October, 2023
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.2191/2017 (PAR)
BETWEEN:
1. LALITHA
W/O MADHAVA,
AGED ABOUT 53 YEARS
2. MADHAVA P.
S/O GANGAIAH POOJARY,
AGED ABOUT 61 YEARS
BOTH ARE RESIDING
AT "SHABARI"
KUNTIKANA, BEJAI,
MANAGLORE TALUK,
DAKSHINA KANNADA
DISTRICT-575001. ... APPELLANTS
(BY SRI SHIVARAMA BHAT O., ADVOCATE)
AND:
1. SHEENA G. SUVARANA
S/O THANKRU,
AGED ABOUT 64 YEARS
R/AT D.NO.2/123,
MELMANE HOUSE, ALAKE KODI
MOOD PERAR POST AND VILLAGE
MANGALORE-575001.
2. NARAYANA POOJARY
SINCE DEAD BY HIS LRS
2
2(a) SMT.REVATHI
W/O LATE NARAYANA POOJARY
AGED ABOUT 70 YEARS
R/AT ALIKE KODI HOUSE
MOODPERAR VILLAGE AND POST
MANGALURU TALUK-574166.
2(b) GANESH SALIAN
S/O LATE NARAYANA POOJARY
AGED ABOUT 55 YEARS
R/AT ALIKE KODI HOUSE
MOODPERAR VILLAGE AND POST
MANGALURU TALUK-574166.
2(c) DINESH SALIAN
S/O LATE NARAYANA POOJARY
AGED ABOUT 45 YEARS
R/AT ALIKE KODI HOUSE
MOODPERAR VILLAGE AND POST
MANGALURU TALUK-574166.
2(d) SUKESH SALIAN
S/O LATE NARAYANA POOJARY
AGED ABOUT 41 YEARS
R/AT ALIKE KODI HOUSE
MOODPERAR VILLAGE AND POST
MANGALURU TALUK-574166.
2(e) MUKESH SAIAN
S/O LATE NARAYANA POOJARY
AGED ABOUT 39 YEARS
R/AT ALIKE KODI HOUSE
MOODPERAR VILLAGE AND POST
MANGALURU TALUK-574166.
2(f) DIVYA SALIAN
D/O LATE NARAYANA POOJARY
AGED ABOUT 35 YEARS
R/AT ALIKE KODI HOUSE
3
MOODPERAR VILLAGE AND POST
MANGALURU TALUK-574166.
2(g) BHAVYA SALIAN
AGED ABOUT 33 YEARS
C/O GOPAL
R/AT NO.5-7/14
THOCHILA NEAR LIONS CLUB
THANDOLIGE
JEPPINAMOGARU VILLAGE AND POST
MANGALURU-575007
DAKSHINA KANNADA, KARKALA.
3. CHANDRA SHEKHARA SUVARNA
S/O LEELA,
AGED ABOUT 54 YEARS
4. ARUNA D/O LEELA
AGED ABOUT 45 YEARS
BOTH ARE RESIDING AT
NEAR NAGAKANNIKA
TEMPLE, KAVOOR
MANGALORE TALUK-575008.
5. VIMALA D/O THANKARU
W/O RAMESH ANCHAN
AGED ABOUT 67 YEARS
R/AT GENDOTTU HOUSE
GUDDE ANGADI POST
VIA MOODBIDRI
MANGALORE TALUK-574151.
6. INDIRA D/O THANKARU ,
W/O LATE CHENNAPPA ANCHAN,
AGED ABOUT 62 YEARS
R/AT BORU GUDDE HOSUE,
KANDAVARA POST,
MAGNALORE TALUK-574151.
4
7. SAMPA D. SANIL
D/O THANKARU
AGED ABOUT 56 YEARS
R/AT BONTEMAR NEW HOUE,
POST PEMANKI, VIA ULAI BETTU,
MANGALORE TALUK-575003.
RESPONDENT NO.2(a), 2(c) TO 2(g) AND
RESPONDENT NO.3 TO 7 ARE REPRESENTED BY
RESPONDENT NO.2(b) GANESH SALIAN
... RESPONDENTS
(BY SRI VASANTH KUMAR, ADVOCATE FOR R1;
SMT. K.B. JAYALAKSHMI, ADVOCATE R2(a - g) &
R3 TO R7)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 06.10.2017
PASSED IN R.A.NO.94/2016 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU, D.K,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 05.04.2016 PASSED IN O.S.NO.857/2009
ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC
MANGALURU.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 10.10.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
5
JUDGMENT
Heard the learned counsel for the appellants and the counsel appearing for the respondents.
2. This appeal is filed by the defendant Nos.1 and 2 against the judgment and decree passed in RA No.94/2016, wherein set-aside the judgment and decree of the Trial Court and granted the relief of partition in favour of the plaintiff granting 1/7th share in respect to the suit schedule property and also declaring the GPA dated 05.05.2007, settlement deed dated 11.05.2007, rectification deed dated 24.01.2009 are not binding on the legal heirs of late Thankaru Hengsu and granted relief of permanent injunction and counter-claim made by the defendant No.1 is rejected.
3. The factual matrix of the case of the plaintiff before the Trial Court that plaintiff along with his family members have occupied the plaint schedule premises bearing Door No.67-2 situated at Sy.No.113/P2 of 6 Mooduperar village, Mangaluru, which is described as plaint 'A' schedule property. The said property belonged to his mother Thankaru Hengsu and as a son, the plaintiff is residing therein along with his family and he is in possession of the said property. Smt.Thankaru Hengsu and Guruva Poojary have begotten seven children. The defendant No.2 is the son-in-law of the late Thankaru Hengsu and the husband of the defendant No.1. The defendant No.2 is having no right over the plaint schedule property, but he is attempting to knock off the property in the name of his wife.
4. It is contended that Thankaru Hengsu has purchased various properties as per registered sale deed dated 14.06.1973 and she was in actual possession and enjoyment of the same as an absolute owner thereof till her death on 16.05.2007. She died intestate leaving behind her seven children. The suit schedule property is a residential house constructed and occupied by the plaintiff. After the 7 death of the Thankaru Hengsu, the parties have succeeded to their plaint 'B' schedule properties on equal rights as co- owners. Each of the parties are having 1/7th right over the plaint schedule properties. During the year 2009, the defendant Nos.1 and 2 forcibly, illegally tried to change the nature of the plaint 'A' schedule property and also tried to demolish the house occupied by the plaintiff and when the counter-claim was made by the defendant asserting the defendant false right, on thorough enquiry, the plaintiff came to know that the defendant Nos.1 to 3 have colluded together and got created some make believes documents with a malicious view to knock off the plaint 'A' schedule property. The said Thankaru Hengsu was incapable of understanding anything while the so called documents relied upon by the defendant Nos.1 and 2 were unearthed in respect of the 'A' schedule property. Without the knowledge of Thankaru Hengsu and even after the death of Thankaru Hengsu, the defendant Nos.1 to 3 by colluding 8 with each other got created various documents. The alleged GPA and settlement deed is created just within 10 days of death of the Thankaru Hengsu while she was virtually a vegetative stage. The so called rectification deed is also created after the death of Thankaru Hengsu, inspite of the knowledge of her death. None of these documents are binding on the plaintiff or other legal heirs of Thankaru Hengsu. The said documents are illegal, void, invalid, collusive and concocted and are liable to be ignored.
5. The defendant No.1 is not in a exclusive possession of plaint 'A' schedule property at any time and 1st defendant is only a co-owner like the plaintiff. The plaintiff is in actual joint possession of the plaint schedule properties and other sharers as legal heirs. The counter- claim is bad and illegal. The plaintiff is in settled possession of the house described in the schedule of the plaint.
6. In pursuance of suit summons, the husband and wife of defendant Nos.1 and 2 have filed written statement 9 denying the averments made by the plaintiff. The plaint schedule property along with other vast extent of properties measuring about 7 acres originally acquired by the Thankaru Hengsu as per the sale deed dated 14.06.1973. The husband of Thankaru Hengsu namely Guruva Poojary expired on 03.05.1964. After the death of Guruva Poojary, the eldest son of the said Thankaru Hengsu namely Mr.Narayana Poojary/defendant No.3 took the responsibility of the entire family including the brothers and the sisters. Being the eldest member of the family, the defendant No.3 provided education to al his sisters including his brother and he had arranged the marriage of all the siblings by spending his hard earned money. The plaintiff failed in SSLC and ran away to Mumbai even without informing his family members in the year 1968 and also he went to abroad and came down to India as he could not pull on therein on account of his arrogant and callous attitude. From 1989 till around 1995 he had became virtually a 10 nuisance and head ache to the entire family as he did not take the responsibility of himself, his wife and his kids. The defendant No.3 some how managed the entire family taking all responsibility on his shoulder.
7. It is also the case of the defendant Nos.1 and 2 that defendant No.3 has educated the children of Leela and the plaintiff. The defendant No.3, who was director of K.M.F, Kulshekar was also running a diary farm, all his income were spent for the family. When he fell short of funds, he approached to avail loan from S.C.D.C.C bank in the name of himself and his mother Thankaru Hengsu, but the bank refused to give the loan in his name or in the name of his mother on account of their advanced age. Therefore, on the suggestion given by the said bank, the defendant No.3 in the name of his son Ganesh Poojary in the year 2000 to the tune of Rs.2,00,000/- on the charge of the plaint schedule property and the adjacent property. Though the loan was availed could not repay the amount 11 which resulted in issuance of auction notice for sale of the mortgaged property which includes the plaint schedule property. In order to avoid the auction, sought the help of defendant Nos.1 and 2 and accordingly they have approached the bank and after mutual discussion, it was agreed for one time settlement by paying sum of Rs.3,57,500/- and accordingly an agreement for sale was entered by the 3rd defendant as the GPA holder of his mother Smt. Thankaru Hengsu. The 2nd defendant herein on 26.03.2007 agreed to sell 70.25 cents of land with the old building situated therein, which has been witnessed by te plaintiff himself. Accordingly, the defendant Nos.1 and 2 have paid a sum of Rs.3,57,500/- to the bank in the name of the borrower. After discharge of the loan, in terms of the aforesaid agreement for sale and also taking into consideration of these aspects, the plaintiff and defendant No.3 and also their mother Thankaru Hengsu decided to make over 66.25 cents of land in Sy.No.113(P) out of 70.25 12 cents, with the old building situated therein to the defendant Nos.1 and 2 so as to compensate them for settling the said loan dues. The 4 cents of land in the said survey number was left out as approach road to their other properties. Since the said property was denoted as non- agricultural property, there was some legal technically to acquire the same in the name of defendant Nos.1 and 2. Therefore, the defendants by spending more than Rs.25,000/- to obtain conversion order on 26.04.2007. There is an exemption from payment of stamp duty under the Karnataka Stamp Act, if the property is conveyed by the parents to their children by way of gift or settlement. Therefore, to get the said benefit of exemption of stamp duty, instead of the 2nd defendant getting the sale deed executed and registered in his name from said Thankaru Hengs, he arranged for the execution of the settlement deed by said Thankaru Hengsu in the name of his wife, the defendant No.1. Accordingly, Smt. Thankaru Hengsu 13 through her son and GPA holder Narayana Poojary executed settlement deed conveying the schedule property in favour of the 1st defendant on 11.05.2007.
8. In pursuance of the settlement, the R.T.C of the plaint schedule property was mutated in the name of the 1st defendant. Due to inadvertence, the existence of the building situated in the plaint schedule property could not be mentioned in the settlement deed. But the same was included by executing the rectification deed on 24.01.2009 and hence made the counter-claim in respect of the item No.1 of the suit schedule property.
9. The Trial Court having considered the material available on record has framed the issues whether the plaintiff is entitled for 1/7th share and for permanent injunction and whether the documents of settlement deed and rectification deed are null and void, whether the defendant No.1 proves that she is the absolute owner in respect of the written statement schedule property through 14 settlement deed dated 11.05.2007 and the plaintiff has no right over the written statement and whether the plaintiff is bound to hand over the possession of written statement schedule property and the defendant No.1 is entitled for injunction.
10. The plaintiff in order to prove his case examined himself as PW1 and also examined the witness as PW2 and got marked the 35 documents as Exs.P1 to Ex.P35. The defendants have examined two witnesses as DW1 and DW2 and got marked documents at Exs.D1 to Ex.D20. The Trial Court having considered both oral and documentary evidence placed on record has dismissed the suit and allowed the counter-claim of defendant Nos.1 and 2 and directed to plaintiff to surrender the vacant possession of the written statement schedule property including the premises and also granted prohibitory injunction.
11. Being aggrieved by the said judgment and decree, the plaintiff has filed RA No.94/2016 and also 15 considered the grounds urged in the appeal, formulated the points as whether the plaintiffs have entitled for 1/7th share and injunction and almost similar to the issues, the point for consideration have formulated.
12. Having peruse the both oral and documentary evidence available on record and on re-appreciation the First Appellate Court reversed the finding of the Trial Court by setting aside the judgment and decree and granted 1/7th share and declared GPA, settlement deed and rectification deed as null and void and granted permanent injunction in favour of the plaintiff and consequently the counter-claim was rejected. Hence, the present second appeal is filed.
13. The main contention of the counsel appearing for the appellant in this appeal that the First Appellate Court has committed an error in reversing the finding of the Trial Court. The main contention that the appellate Court has not applied the correct principles of law and ignored the material evidence available on record and totally adopted a 16 wrong approach and not formulated the proper points. The First Appellate Court fails to consider the fact that the plaintiff has filed suit for bare injunction in respect of 'A' schedule property initially and after filing the written statement and counter-claim by defendant Nos.1 and 2 an application came to be filed by the plaintiff for amendment of the plaint in the year 2012 and thereby wanted to add 'B' schedule property and sought for partition and separate possession in respect of both 'A' and 'B' schedule property which is afterthought. The plaintiff being a party to Ex.D4, Ex.D5 and Ex.D6, intentionally suppressed the fact of execution of agreement.
14. The counsel would vehemently contend that availment of loan of Rs.2,00,000/- is not disputed and repayment of Rs.3,57,500/- is also not in dispute and also for the repayment the defendant No.2 help the family. Hence, executed an agreement in terms of Ex.D4 and thereafter, after clearing the amount, settlement deed was 17 executed and the plaintiff being party to the agreement as well as the settlement deed he cannot dispute the same.
15. This Court having considered the material on record and also grounds urged in the second appeal, framed the substantial questions of law as follows:
1) Whether the lower appellate Court is justified in reversing the judgment and decree of the Trial Court when the defendant No.3 is said to have admitted the execution of Exs.D4, Ex.D5 and Ex.D6 and pleaded that that partition could be granted only in respect of schedule-B properties.
16. The counsel for appellant in his oral submission re-iterated the grounds urged in the appeal memo and only issue involves between the parties with regard to the documents at Ex.D4, Ex.D5 and Ex.D6 and there is an admission of PW1 with regard to the loan and the execution of the settlement deed.
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17. The counsel in support of his argument he relied upon the judgment reported in AIR 1999 SC 2203 in case of Brij Raj Singh (Dead) by L.Rs. and others V/s Sewak Ram and another wherein the Apex Court held that deed in question is a registered deed, no specific objection raised as to its execution/attestation, one of two attesting witness examined to prove deed- sufficient to prove gift- nothing more is required to satisfy the requirements of Section 123, allowing the defendants to raise the plea of non-compliance of Section 123 of Transfer of Property Act and in holding that the gift deed was not proved is improper.
18. The counsel also relied upon the judgment of Apex Court reported in (1999) 6 SC 104 in case of K.S.Satyanarayana V/s V.R.Narayana Rao and the counsel relying upon this would vehemently contend that the plaintiff not only denied his signature in documents at Ex.D4 and Ex.D5 but also even denied the Vakalath and the 19 counsel referring this judgment would vehemently contend that in the case on hand also when he has denied his own Vakalath even denied the photo of his son. The Apex Court held the comparison of signature, where the defendant denied signature on various exhibited documents and also on Vakalathnama and written statement, held, Trial Court could have compared the signatures under Section 73 and also made an observation that it is nothing but undue enrichment and taken note of Section 70 and Section 72 of the Contract Act.
19. The counsel also relied upon the judgment of reported in ILR 2012 KAR 2027 in case of Sri.Siddaraju and others V/s Sri.Gangadhara and another wherein held that once the settlement deed is made in favour of the plaintiff, entire extent of 48 guntas, the land which is retained by the settler to the extent of 10 guntas as a life interest is only a limited estate and not the absolute right and subsequently, any such settlement made in favour of 20 the 1st defendant to the extent of 10 guntas out of 48 guntas in void and once there is conveyance way of settlement deed in favour of the plaintiff, the right if any, retained by the settlor is only life interest and not absolute right.
20. Per Contra, the counsel appearing for the respondent in his argument he vehemently contend that the DW1 and DW2 evidence is with regard to loan was borrowed and no pleading regarding loan in pleading while making the counter-claim and only evidence has been led in.
21. The First Appellate Court relied on the evidence available on record and rightly allowed the appeal and granted the relief and it does not requires any interference and in detail discussed the evidence available on record and rightly comes to the conclusion that the plaintiff is entitled for a decree. The counsel would vehemently contend that the Trial Court taking into note of material on record, fails 21 to consider the contentions raised by the plaintiff but, the First Appellate Court rightly reversed the finding of the Trial Court having considered the material by giving anxious consideration to the material available on record.
22. The counsel in support of his argument he relied upon the judgment CDJ 2011 Kerala High Court 434 and contend that an attesting witness to the agreement for sale is not a person who would be affected by the decree, an attesting witness need not know the contents of the document by reason of mere attestation of document, it is not possible to attribute to an attestor and knowledge of the contents of the documents.
23. The counsel also relied upon the judgment CDJ 2007 MADRAS High Court 3388 it was necessary for the propounder of the Will to prove that Will has been executed by the testator after understanding the contents thereof likewise, merely because the plaintiff is an attestor to the document, it cannot be contend that he had the knowledge. 22 The DW1 and DW2 admits do not know who wrote the document and hence, the appellate Court rightly comes to the conclusion that the same has not been proved.
24. Having heard the appellants' counsel and also counsel appearing for the respondent, there is no dispute with regard to the relationship between the parties. It is also not in dispute that the property was purchased by Thankaru Hengsu in the year 1973. It is also important to note that the father of the parties died in the year 1964 itself. But, the properties are purchased subsequent to the death of the father in the year 1973. It is also evident from the records that the defendant No.3 had taken the responsibility of the family after the death of the father. It is also the claim of the parties that he had only provided education to the family members including brothers and sisters. The PW1 has also admits that father died on 03.05.1964 and also categorically admits that his mother was an illiterate. But, categorically admits that in the year 23 1974 3rd defendant had purchased the property in the name of the mother. When the suggestion was made that the 3rd defendant admitted her to high school, but he claims mother gave the money, but not denies the fact that he was admitted to school by 3rd defendant and also admits that he failed in the SSLC in the year 1969 and also admits that when he failed in SSLC he went to Mumbai. He admits that for having sent money to mother and 3rd defendant he is not having any document. He also admits that after selling 40 cents of land except the land is preserved for the road remaining 66.25 cents was converted. He admits that the bank advanced the loan for agricultural work but denies the execution of general power of attorney by the mother in favour the 3rd defendant and also he admits that the 3rd defendant's son Ganesh was residing along with them when he was aged about 25 years in the year 2000. When the suggestion was made that loan was availed in his name, but the same was denied. He did not repay the amount to the 24 S.C.D.C.C bank on behalf of his mother. When the suggestion was made that the bank has issued the auction notice, but he denies that he is not aware of the same, but admits that 3rd defendant is respectable person in the village and also admits that 1st defendant's husband is well of and the 1st defendant is also working as nurse in Wenlok hospital. When the suggestion was made that they were due for an amount of Rs.5,00,000/- to the bank and the same also denies that he is not aware of the same and also admits that if one time settlement bank will give concession. When the suggestion was made that one time settlement bank offered Rs.3,57,000/- and the same also denies that he is not aware of the same. A suggestion was made that requested the 2nd defendant to clear the loan and offered 'A' schedule property and the same was denied. He also denies even signature to Ex.D4 and also he admits that he has not proved that signature available in the Ex.D4 is not belongs to him and also he has not denied the 25 signature in his chief affidavit and also not even denied the settlement deed. Further admits that whenever he use to make signature, he use to know the contents of the document and thereafter he use to sign the same and not having the habit of making the signature without knowing the contents. It is also important to note that a suggestion was made that the defendant No.2 had made the payment of Rs.3,57,000/- to the bank, but claims that only Ganesha had signed the same and when the question was put to him that whether they are going to examine the Ganesha, but he gave the reply that he is busy and admits that there is a good relationship between him and the said Ganesha.
25. The plaintiff has also examined the PW2 who is wife of the said Ganesha and she comes and deposes that the loan was taken for her husband business, but denies that the loan was taken for the family. On the other hand the defendant No.2 was examined and also one of the defendant has been examined as DW1 and DW2. The DW1 26 is the none other the 2nd defendant, she claims that he made the payment in favour of the bank. The DW2/3rd defendant who executed settlement deed who executed power of attorney in favour of the 1st defendant and he re- iterates that loan was availed and the loan was repaid by the defendant No.2 and hence settlement deed was executed and admits that the plaintiff is residing in the suit schedule property and loan was obtained in his sons name since he himself and mother was aged and Ex.D5 settlement deed was prepared in the advocate office of Sundara Parakpadi and he has signed in the Sub registrar office.
26. Having reassessed both oral and documentary evidence available on record it is clear that an agreement was executed in terms of Ex.D4 and also settlement deed was executed in terms of the Ex.D5. Though the plaintiff denied his signature available in the Ex.D4 and Ex.D5 and both the Courts have accepted that the plaintiff had signed 27 the document at Ex.D4 and Ex.D5, even the plaintiff had gone to the extent of denying the signature available in Ex.D4 and Ex.D.5 and not only that even denied his Vakalath and and rightly the appellants' counsel relied upon the judgment of the Apex Court in case of K.S. Satyanarayana Vs V.R.Narayana Rao and in the said case also the defendant has denied the signature on various documents and also on Vakalathnama and the Court has taken note of the conduct of the defendant regarding undue enrichment. I have already pointed out both Trial Court and also the First Appellate Court comes to the conclusion that document at Ex.D4 and Ex.D5 are the signature of the plaintiff, even the First Appellate Court also comes to the conclusion that Ex.D4 has signed as one of the attesting witness to the said document. But, observed that none other legal heirs of the Tenkaru Hengsu have signed to the Ex.D4 and also comes to the conclusion in paragraph No.33 of the First Appellate Court that even though the plaintiff 28 denies the signature on Ex.D4 and Ex.D5 with his admitted available signature, the said signatures on Ex.D4 and Ex.D5 or that of the plaintiff only. When the plaintiff also admits that there was a loan and an amount of Rs.3,57,000/- paid to the bank, but only claims that the son of the 3rd defendant made the payment, but it is the case of the defendant Nos.1 and 2 that the defendant No.2 made the payment but, the document is obtained in the name of his wife i.e, defendant No.1 in order to avoid the stamp duty.
27. It is important to note that the plaintiff is not an illiterate and also he has worked in Mumbai and also in abroad, he came back and also categorically admitted that the 3rd defendant is a respected person in the village and he had executed the settlement deed and also the agreement in terms of Ex.D4 and Ex.D5 and the defendant No.3 has also not disputed the execution of settlement deed in terms of Ex.D5 and also an agreement in terms of Ex.D4. No doubt rectification deed was executed subsequently even 29 after the death of the mother and though no power to execute the rectification deed for the fact is that Ex.D4 and Ex.D5 executed by defendant No.3 who was the kartha of the family who was the elder member of the family and materials also discloses that after the death of the father in the year 1964 he had taken care of the family and PW1 has also categorically admitted while purchasing the property in the year 1973, 3rd defendant only purchased the property in the name of mother and when he had executed settlement deed that to when the defendant No.2 came forward to help the family in order to avoid the auction in view of the notice issued by the bank, he made the payment and an agreement was executed in his favour in terms of Ex.D4 and thereafter settlement deed was executed in terms of the Ex.D5 and contents of Ex.D4 and Ex.D5 is very clear with regard to the availment of loan and non payment of loan in favour of the bank and issuance of the notice for auction and also payment was made by defendant No.2 and 30 when all such materials were available before the Court and also pleading is very clear except the item No.1, the property which was executed in favour of the defendant No.1 for the help extended by them when the property was settled and the PW1 also categorically admits all other contentions raised by the defendants in the written statement during cross-examination except denying of document Ex.D4 and Ex.D5 but, once both the Courts comes to the conclusion that signature available in Ex.D4 and Ex.D5, these are the signature of the plaintiff and he has also not pleaded anything about the signature was obtained by fraud or misrepresentation and also he categorically admitted that in his chief evidence he has not denied the signature available in the Ex.D4 and Ex.D5, the Trial Court rightly evaluated the evidence available on record that he had the knowledge of the execution of document at Ex.D4 and Ex.D5 and taken note of the conduct of the plaintiff while appreciating his evidence in 31 coming to the conclusion that he had the knowledge of Ex.D4 and also signed the same as attestor and Supreme Court judgment relied upon by the appellants' counsel is aptly applicable to the case on hand since in the said case also the defendant had denied the signature available in the plaint. But, in the case on hand also the plaintiff denied the Vakalath as well as other documents, it is nothing but an undue enrichment in getting the share in the property of 'A' schedule. The Trial Court has taken note of the said material while appreciating the evidence. The admission of PW1 is also clear that he never make any signature without knowing the contents of the documents and no explanation why he had signed Ex.D4 and Ex.D5.
28. The First Appellate Court has re-appreciated the material available on record and even comes to the conclusion that the signature of the plaintiff is found in Ex.D4 and Ex.D5 and the same belongs to the plaintiff and even comes to the conclusion extracting the evidence of 32 PW1 in paragraph No.19 on 14.06.1973, the suit schedule properties are purchased and the same is purchased in the name of the mother but he denied the signature in Ex.D4 but categorically admitted that in the plaint and in his chief evidence he has not denied the signature and also not signing any document without knowing the contents of the document and only after understanding the same only he use to make signature and also categorically admitted that an amount of Rs.3,57,500/- was paid to the bank, but only contend that Ganesh had paid the same and the wife of said Ganesh has been examined as PW2 but she categorically says that her husband did not come to give evidence before the Court. The Court also made an observation that the conduct of the plaintiff towards his family is not proper and good but comes to the conclusion that he does not disentitle from the property, but here it is not the question of disentitlement of the property. The Ex.D4 and Ex.D5 though not admitted, both the Courts come to the 33 conclusion that the signature found in Ex.D4 and Ex.D5 belongs to the plaintiff and rightly pointed out by the counsel for the appellant that even the Court can compare the signature under Section 73 and on comparison of the signature of the plaintiff, signature found in Ex.D4 and Ex.D5 is also belongs to the plaintiff only. The fact that loan was obtained and the same was repaid is not in dispute and Ex.D4 and Ex.D5 also reveals the same in the document itself and the PW1 also categorically admitted that even said Ganesha was also residing along with them and he categorically admits that the loan was also availed in the year 1999-2000 and the amount of Rs.3,57,500/- was paid in 2007 after the one time settlement negotiation.
29. Though the counsel appearing for the respondent contend that the loan is obtained only Rs.2,00,000/- but, the material is very clear that the loan is obtained in the year 1999-2000 and repayment was made in 2007. hence, the loan amount was accumulated to Rs.5,00,000/- and the 34 same was reduced to Rs.3,57,500/- in one time settlement and when the plaintiff also admits for having made the payment of Rs.3,57,500/- to the bank.
30. The First Appellate Court having re-considered the material on record, comes to the conclusion that whole suit devolves on Ex.D4 to Ex.D7 which are the prima facie documents and when there was an agreement dated 26.03.2007 and the same had been signed by the plaintiff and also settlement deed was executed by defendant No.3 in favour of defendant No.1 after clearing the bank dues. The First Appellate Court committed an error in coming to the conclusion that power of attorney executed in favour of the defendant No.3 has not been produced and the very approach is erroneous, since he himself is a attesting witness to the document of both Ex.D4 and Ex.D5. Even in the absence of the power of attorney when the plaintiff himself has signed both the documents at Ex.D4 and Ex.D5, the First Appellate Court ought not to have made such an 35 observation, but erroneously comes to the conclusion that defendants have not assigned any reasons as to what made them to enter into agreement with defendant No.2 and to execute the settlement deed in the name of the defendant No.1. But, fails to take note of the fact that the defendant No.2 who is the husband of defendant No.1 had made the payment to clear the loan amount. Though an agreement was executed in favour of defendant No.2 and the reason is also assigned that in order to avoid the stamp duty, since the defendant No.1 is belongs to the very same family executed the document and this fact has not been taken note of and proceeded in an erroneous approach. The fact that defendant No.2 is well off and the same is also not disputed in the evidence but admitted.
31. The First Appellate Court taken note of the fact that in Ex.D4 even the plaintiff has signed as one of the attesting witness to the said document, but comes to the conclusion that none other legal heirs of the Tankaru 36 Hengasu have signed to the Ex.D4. But, the very fact that Ex.D3 is also the legal heir of Tankaru Hengsu was not taken note of by the Appellate Court and also it is emerged that he only taken care of entire family after the death of the father since mother was illiterate and property is also purchased by defendant No.3 in the name of the mother. The very approach of the First Appellate Court is erroneous and ought not to have reversed the finding and the Court has to take note of the material available on record in toto and mainly relied upon the document of rectification deed dated 24.01.2009 may be said document was executed subsequent to the death of the Tankaru Hengsu when there is an admitted document of Ex.D4 and Ex.D5 are prior to the said document and none of the legal heirs of Tankaru Hengsu disputed the document except the plaintiff and inspite of it committed an error. Hence the judgment and decree of the First Appellate Court requires to be set-aside in respect of the item No.1 of the property to the extent of 37 66.25 cents with building in view of the settlement deed and rectification deed executed in favour of the defendant No.1 and hence judgment and decree in respect of residential house bearing 67/2 situated at Sy.No.113/P2 of Moduperara village measuring 66.25 acre with electricity connection under RRGMT 472 of paikamba MESCOM cannot be partible in view of the document at Ex.D5 to Ex.D7 were executed in favour of the defendant No.1 and 2 and hence, the judgment and decree of the Trial Court in respect of 'A' schedule property is concerned has to be restored and in respect of other property is concerned, no dispute with regard to the granting of the share in favour of the plaintiff and the same cannot be modified. Hence, I answer the substantial questions of law framed by this Court as affirmative in view of the document at Ex.D4 to Ex.D6 have been executed.
32. In view of the discussions made above, I pass the following:
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ORDER i. The appeal is allowed in part. ii. The judgment and decree of the First Appellate Court is set-aside in respect of the 'A' schedule property and the very finding of the First Appellate Court that GPA, settlement deed and the rectification deed are invalid is hereby set- aside and the conclusion that the same is not binding on the legal heirs of late tankar hengasu is also set-aside.
iii. Consequently, the judgment and decree of the Trial Court is restored in respect of counter-claim of defendant Nos.1 and 2 and directed the plaintiff to surrender the vacant possession of the written statement's schedule property including the premises bearing door No.2.67.2(2.123) in favour of the defendant Nos.1 and 2 within 45 days from the date of this 39 order failing which the defendant Nos.1 and 2 is entitled to take the possession in accordance with law.
iv. The registry is directed to send the records to the respective Courts forthwith.
Sd/-
JUDGE RHS