Bangalore District Court
S.S.Pandit S/O Late Mahadev vs Chetan S.Pandit S/O Shripad on 7 November, 2015
1 O.S.No:1566/2007
IN THE COURT OF THE III ADDL.CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY (C.C.H.No.25).
Dated: This the 7th day of November 2015
Present: Sri.Ron Vasudev, B.Com. LL.B, (Spl),
III Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.No:1566/2007
Plaintiffs 1. S.S.Pandit S/o late Mahadev
Shivram Pandit, Aged about 60
years, R/at No.403, B-Kaveri
th
Apartments, 5 Road Chembur,
MUMBAI-400 071, Now come down
to Bangalore.
2. Smt.Shyamala Venkatadri W/o
Venkatadri, Aged about 56 years,
R/at No.201, Lavina Courts, 8th
Main, 7th Cross, Sadashivanagar,
Bangalore-560 080.
(By Sri.HSD, Advocate.)
Vs
Defendants 1. Chetan S.Pandit S/o Shripad
Shivram Pandit, Aged about 32
years, R/at No.403, B-Kaveri
th
Apartments, 5 Road, Chembur,
Mumbai-400 071.
2. V.S.Pandit, S/o Late M.S.Pandit,
Aged about 75 years, R/at No.87,
Kumara Krupa Road, High Grounds,
Bangalore-560 001.
Since dead by his L.Rs.
2(a) Parvathi V.Pandith W/o Late
V.S.Pandith, Aged about 61 years,
(Dead)
2 O.S.No:1566/2007
2(b) Lakshmi Vijaya Kumar D/o Late
V.S.Pandith, Aged 43 years,
2(c) Ravi S.V.Pandith S/o Late
V.S.Pandith, Aged 40 years,
All residing at No.87, Kumarakrupa
Road, High Grounds, Bangalore-560
001.
(D1 by Sri.MS, Advocate)
(D2(a) to 2(c) by Sri.HRA, Advocate)
Date of Institution 8.1.2007
Nature of suit Declaration & Possession
Date of commencement of 20.6.2011
evidence
Date on which the judgment was 7.11.2015
pronounced.
Total Duration: Years Month Days
8 9 29
(RON VASUDEV),
III Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This is a suit for cancellation of Release Deed.
2. The suit schedule property is property appurtenant to site no.40B and 41 situating on Race Course Road, Kumara Krupa East measuring East to West 67.5 feet and North to South 141.5 feet and bounded by East - Property bearing 3 O.S.No:1566/2007 no.22/1, West - Property belonging to the second defendant, North - road and South - Indian Oil Petrol Pump.
3. The substance of the plaint averments is that; the defendant no.1 is the son of plaintiff no.1 and the defendant no.2 is the step brother of plaintiffs. The plaintiffs are brother and sister. That there were several disputes between the defendant no.2 on one hand and plaintiffs on the other hand. Earlier the defendant no.2 had filed a suit for partition at O.S.No:1073/1979, which was renumbered as O.S.No:6027/80, and it came to be dismissed. Against the said findings RFA No:222/84 was filed and that was also dismissed. Thereafter the wife and children of defendant no.2 filed one more suit at O.S.No:1292/98 for the relief of injunction and that was also dismissed. As against that they approached the Hon'ble High Court and there also their appeal was dismissed. The plaintiffs submit that for certain purpose the plaintiff no.1 had given Power of Attorney to the defendant no.1 and the said defendant being young, not well versed with legal implications of various acts and also not aware of the legal technicalities, as the defendant no.2 is his uncle, had been to his house and there it appears that the defendant no.2 prevailed on the defendant no.1 that they can have very good and cordial relationship with his step brother and step sister (plaintiffs) provided the defendant no.1 executes a Release Deed in respect of the schedule property, having knowledge that the defendant no.1 is holding Power of Attorney from the plaintiff no.1, it also appears that the defendant no.2 made 4 O.S.No:1566/2007 representation that if the release deed is executed in his favour the broken family can reunite and they can have an excellent relationship. Perhaps influenced by the said wordings, the defendant no.1 being young and emotional, thought it fit to up hold the family prestige and image and on the belief that he would reunite the brothers and sister, who are in not good terms, executed a release deed on 8.12.2003 and got it registered. Infact the Power of Attorney executed by the plaintiff no.1 in favour of the said defendant no.1 did not authorize him to execute such release deed in respect of the schedule property. The plaintiff no.2 is not a party to the said release deed. Notwithstanding the said release deed the plaintiffs are the absolute owners of the schedule property and the plaintiff no.2 is the rightful owner of the said property to the extent of half share. It is submitted that plaintiffs and defendant no.2 are the sons and daughter of late Mahadeva Shivaram Pandit (hereinafter referred to in short as M.S.Pandit) and the said M.S.Pandit died on 10.6.1963. At the time of his death the said M.S.Pandit left some immovable properties and all those properties were his self-acquired properties. At the first instance all assets including the movable properties of the family were divided among the members of the family on 15.2.1970 and even after the said division the defendant no.2 went on asking money to the plaintiff no.1. Initially the plaintiff no.1 used to pay, but later he refused to oblige him. That the suit property in question had not vested in late M.S.Pandit during his life time and there was only a letter of allotment in 5 O.S.No:1566/2007 his favour. The balance of sale consideration was paid by the plaintiff no.1. That on the basis of solemn declaration given by defendant no.2 that the said property was not in legal possession of M.S.Pandit during his lifetime as such it is not included in the settlement deed, which was executed earlier, and that property should go to the plaintiff no.1 and their another brother Balakrishna S.Pandit and he had no objection to issue title deed to them and on similar declaratiaon of Smt.Lakshmi Narasu, mother of the plaintiffs, the sale deed was executed by CITB in respect of said property in favour of plaintiff no.1 and said Balakrishna S.Pandit. That said Balakrishna S.Pandit is now no more and on his death, the share of the said deceased is succeeded by the plaintiffs alone. The defendant no.2 is being the step brother he has no right or interest in it and he did not succeed to the estate of the said deceased, therefore it is the absolute property of the plaintiffs. Such being the case the release deed executed by defendant no.1 purportedly acting for the plaintiff no.1 in favour of defendant no.2 seriously affects the rights of the plaintiffs. The plaintiffs were not aware of the said release deed for long time but when the defendant no.1 recently informed the plaintiff no.1 about the execution of release deed by furnishing copy of it, the plaintiffs noticed that it is void and not enforceable. In given situation if is left outstanding it would cause serious injury to the rights of the plaintiffs. That the plaintiffs are in possession of the schedule property. The cause of action for the suit arose on 8.12.2013 and subsequently in the early part 6 O.S.No:1566/2007 of 2006 when the plaintiffs came to know the execution of release deed. Wherefore the plaintiffs pray for judgment and decree for cancellation of impugned release deed and effect of the decree be communicated to the jurisdictional Sub-Registrar to enable him to make necessary entry in his books and for costs of the suit.
4. Before entering appearance the defendant no.2 died, so his L.Rs are brought on record. The said L.Rs have filed the common written statement and it is as under:
that the plaint lacks necessary particulars as required in law as such it is not maintainable. That suit is barred by limitation and is liable to be dismissed on this count alone. That plaint is not properly valued and the court fee paid on the it is insufficient as such it is liable to be rejected. That suit is also barred by principles of estoppel, acquiescence, abandonment and waiver. That to the knowledge of these the plaintiffs the defendants got amended the plaint in O.S.No:1292/98 filed by them by incorporating all details pertaining to the subject matter of present suit and the release deed dt.8.12.2003 executed in favour of defendant no.2 and it is perfectly legal, valid and proper, as a result the said defendant acquired title to the said property and through him these defendants have become the absolute owners of the said property and are in possession of it. The plaintiffs have suppressed the material fact that they have also executed an affidavit on 21.8.2003 stating that they have no objection to issue a sale deed in 7 O.S.No:1566/2007 favour of defendant no.2 in respect of the schedule property and it is submitted to the BDA. The release deed and other documents executed by the plaintiffs, including the General Power of Attorney, are binding on them and they are not entitled to seek cancellation of the release deed. It is obvious that this suit is an outcome of fraud and collusion between the plaintiffs and the defendant no.1. The defendant no.1 was fully competent, empowered and authorized to execute the release deed and other documents in favour of defendant no.2 in respect of the schedule property. That the plaintiffs have full and complete knowledge of the release deed as well as other documents that was executed by the defendant no.1 right from the beginning and they have acquiesced to the same. The present suit is filed with a malafide intention to cause wrongful loss to the defendants and to make wrongful gain for themselves. It is true that plaintiffs are brothers and sister and defendant no.1 is the son of plaintiff no.1. It is also true that previously suit at O.S.No:1292/98 was filed seeking comprehensive reliefs like declaration, partition and injunction, but the plaintiffs have not disclosed all the said facts and have intentionally suppressed the truth, so on that count also this suit is not maintainable. It is true that plaintiff no.1 has executed a General Power of Attorney on 6.10.2002 in favour of defendant no.1, but it is denied that it was given only for certain purposes. It is denied that the defendant no.1 is very young and he is not well versed with legal implications of various acts and not aware of legal technicalities. It is also 8 O.S.No:1566/2007 denied that defendant no.2 influenced the defendant no.1 and consequent thereto the defendant no.1 executed the release deed. It is denied that the plaintiff no.2 is the rightful owner to the extent of half share in the schedule property and the plaintiffs are in possession of it. It is true that M.S.Pandit died on 10.6.1963, but it is denied that he had acquired the properties out of his own earnings. It is also denied that the defendant no.2 was demanding money from the plaintiff no.1 and it was initially met by the said plaintiffs. It is specifically denied that the plaintiffs came to know the impugned release deed very recently. That there is no cause of action for the suit and the alleged one is false and invented, wherefore the L.Rs of the defendant no.2 pray to dismiss the suit with costs.
5. Though the defendant no.1 entered appearance through his advocate he has not chosen to contest the suit.
6. Based on the said pleadings my predecessor in office has framed the following issues:
ISSUES
1. Whether the plaintiffs have properly valued the suit property and paid the proper court fee?
2. Whether the suit is barred by law of limitation?
3. Whether the 2nd defendant proves the suit is barred by the principles of estople, acquiescence, abandonment and waiver?9 O.S.No:1566/2007
4. Whether the plaintiffs prove that the release deed dated 8.12.03 executed by the 1st defendant in favour of 2nd defendant is not binding on them and is liable to be cancelled?
5. To what order or reliefs the plaintiffs are entitled?
7. In support of their case plaintiffs examined plaintiff no.1 as PW1 and got marked Ex.P1 to P5 and during his cross- examination Ex.D1 to D4 were marked. The L.Rs of the defendant no.2 examined L.Rs No.2(b) as DW1 and she again marked Ex.D1 to D5, overlooking the fact that already Ex.D1 to D4 were marked, when this fact was came to the knowledge of the court, by order dt.7.9.2015 Ex.D1 to D5, which were marked through the further chief of DW1, were renumbered as Ex.D5 to D9. During the cross-examination of DW1 the plaintiffs got marked Ex.P6 to P9. Heard the arguments of Sri.HSD, Advocate for the plaintiffs and Sri.KBSM, Advocate for defendant no.2. There was no representation for defendant no.1. Perused the decisions relied by them.
8. My findings on the above issues are as under:
Issue No.1 - In the negative Issue No.2 - In the affirmative Issue No.3 - In the affirmative Issue No.4 - In the negative Issue No.5 - As per final order, for the following:10 O.S.No:1566/2007
REASONS Issue No.1:
9. Opening the arguments for plaintiffs Sri.HSD advocate submitted that since the plaintiffs have sought for cancellation of release deed, to which admittedly these plaintiffs are not signatories, therefore the payment of court fee U/Sec.47(ii) of the KCF & SV Act is just and proper. He submitted that there is no cross-examination of PW1 on this aspect by the defendants and on that ground also he prayed to answer the issue in favour of the plaintiffs. On the other hand in accordance with their written statement Sri.KBSM Advocate for L.Rs of defendant no.2, i.e. contesting defendants argued that court fee paid is insufficient and plaintiffs be directed to pay the deficit court fee. In this background I have carefully gone through the pleadings and evidence made available by the parties.
10. Infact as contained in Order 7 Rule 11 (b) where the relief claimed is under valued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so, such plaint is liable to be rejected. In other words this issue of court fee has to be attended and answered by the court at the very inception by treating it as a preliminary, but the order sheet shows that no such attempt was made nor it was brought to the notice of the court by the parties, more precisely by the contesting defendants. However that lapse will not come in the way to 11 O.S.No:1566/2007 decide this issue at this stage. In this back ground I have scanned through the entire case file.
11. The plaint is totally silent how the plaintiffs have computed the court fee and under what provision as there is no pleading to that effect. Straightaway the valuation slip is enclosed stating that suit is one for cancellation of release deed and "possession" U/Sec.47(ii) of KCF & SV Act and as the value of the suit property is more than Rs.10,000/- court fee of Rs.200/- is paid on the plaint. In this regard nevertheless in Para-8 of the written statement the contesting defendants alleged that suit is not properly valued and court fee paid is insufficient and plaint is liable to be rejected, but they have not chosen to cross-exam the PW1 on that point. However that will not absolve the court to answer the issue without looking into valuation made by the plaintiffs.
12. It may be noted that while registering the plaint office made observation that court fee paid is insufficient, but then my predecessor in office keeping open that point ordered to issue suit summons to the defendants, thereupon the defendants appeared, issues were framed, and inspite of framing issue to that effect no finding was recorded. Now the point is whether the valuation made by the plaintiffs can be accepted?
13. Admittedly the plaintiffs are seeking to cancel the registered release deed dt.8.12.2003, produced at Ex.P2, and it 12 O.S.No:1566/2007 is in respect of the schedule property by contending that in the suit property the plaintiff no.1 is having his half share. It is their further assertion that the remaining half share belongs to plaintiff no.2, and in the event if the said deed is allowed to stand, it would prejudicially affect the right of the said plaintiff no.2 also. Therefore though the plaintiff no.2 is not a party to the release deed nor she having executed any GPA to the defendant no.1 to deal in respect to the schedule property, she also joins the plaintiff no.1 in seeking to set aside or to cancel the impugned deed. Admittedly the schedule property is an immovable property capable of valuation.
14. Sec.47(ii) of the Act, under which the plaintiffs have taken shelter, refers to the suits which are not otherwise provided for, whereas the relief of cancellation of release deed by them squarely falls U/Sec.38 of the Act. The said section deals with suits for cancellation for decrees etc. For the sake of convenience I would extract the relevant portion as under:
(1) In a suits for cancellation of a decree for money or other property having a money value or other document which purports or operates to create, declare, assign limit or extinguish, whether in present or in future, any right, title or interest in money, moveable or immovable property, fee shall be computed on the value of the subject matter of the suit and such value shall deemed to be:-13 O.S.No:1566/2007
If the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed;
If a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property.
(2) If the decree or other document is such that the liability under it can not be split up and the relief claimed relates only to the plaintiff's share in any such property, fee shall be computed on the value of such property or share on the amount of the decree whichever is less."
(under lining is done by me)
15. From the bare reading of the said section it is crystal clear that though superscription of the section suggests that it covers the suits relating to cancellation of decrees, but the contents of it further show that it is not only in respect of the decrees, but even in respect of other documents or instruments which purports or operates to create, declare, assign limit or extinguish, whether in present or in future, any right or title or interest in respect of immovable property. In that event as per the said provision fee has to be computed on the market value of the subject matter of the suit. As could be seen from the sec 38(2) of the Act if the instrument or document is of such a nature that it cannot be split up and relief claimed relates to the plaintiffs share in any such property, fee shall be computed 14 O.S.No:1566/2007 on the value of such property. As I said earlier since the plaintiff no.2 has also prayed to protect her alleged right in the schedule property she is also required to pay court fee. Even assuming for a moment that her share is not covered under the impugned deed, the plaintiff, who is admittedly claiming his half share in the suit property, and his share being capable of valuation, he ought to have paid court fee u/s 38(2) of the KCF & SV Act atleast.
16. It is true that release deed do not contain the valuation of the share of the plaintiff, but it does not mean that the suit schedule property cannot be valued in terms of money. Having pleaded in Para-15 of the plaint that they are in possession of the schedule property and without seeking the relief of possession, straightaway in the valuation slip at column no.2 plaintiffs allege that they have also filed this suit for "possession" in addition to cancellation of release deed. Since the said error do not go to the root of the valuation slip, without giving too much emphasis to it, certainly I would hold that payment of Rs.200/- court fee for cancellation of the release deed is grossly inadequate, wherefore I hold that the plaintiffs have miserably failed to prove this issue and accordingly I answer it in the negative.
Issue No.2:
17. During the argument Sri.HSD Advocate submitted that it is the specific case of the plaintiffs that they were unaware of the impugned deed, so if contrary is asserted by 15 O.S.No:1566/2007 the contesting defendants, it is for them to prove that the plaintiffs, especially the plaintiff no.1, had knowledge of the said deed. It was his submission that a party cannot be asked to prove the negative thing when he solemnly declares that he has no knowledge of the execution of the release deed. According to him as the impugned deed was executed on 8.12.2003 the filing of suit on 8.1.2007 ie, within three years from the date of knowledge of the said deed saves the suit from the rigors of limitation Act. He also urged that when it is said that suit has to be filed for cancellation of an instrument or a decree, within three years from the date of knowledge of the plaintiff, as used in Sec.17 of the Limitation Act, the knowledge of impugned deed is to be proved by the contesting defendants and unless that is proved, it cannot be said that suit is barred by limitation.
18. On the other hand Sri.KBSM, Advocate submitted that the plaint averments at Para-13 and 16 run contrary to each other and as per Sec.3 of the Limitation Act it is a primary duty of the plaintiffs to show that their suit is within the limitation then only onus shifts to the defendants to prove the contrary. He canvassed that the defendant no.1, who executed the release deed, is none other than the son of PW1 and as could be seen from the plaint cause title they reside under the same roof, and conduct of PW1 and non-appearance of defendant no.1 show that they are hand-in-gloves. That even after having knowledge of the release deed the plaintiff did not choose to challenge it within the limitation period. In support of 16 O.S.No:1566/2007 his submission that it is the primary duty of the plaintiffs to prove that suit is within the period of limitation he drew my attention to the decision reported at K.S.Nanji and Company v Jatashankar Dossa and others reported at AIR 1961 SC 1474. The learned counsel further contended that if the plaintiffs seek to take shelter U/Sec.17 of the Act they have to show the existence of fraud or mistake as contained in that section and when there is no plaint pleading to that effect the said section will not come to the help of plaintiffs. He also drew my attention to the Order 6 Rule 4 of CPC regarding requirements of pleadings on particulars of misrepresentation, fraud etc., thus he prayed to answer this issue against the plaintiffs. In reply to the said argument Sri.HSD, Advocate submitted that only for the purpose of explaining when the limitation would commence he has referred to Sec.17 of the Act and not with an intention that plaintiffs are taking shelter under it. He argued that if at all the contesting defendants were serious in urging on the limitation they ought to have examined the defendant no.1 and non-examination of the said person leaves the field vacuum with no evidence as to when PW1 or plaintiffs came to know about the release deed. Thus he prayed to answer this issue in favour of plaintiffs. In this view of the matter I have gone through the pleadings and evidence meticulously.
19. While analyzing the pleadings and evidence of the parties court has to go deep in to the matter, especially in a case like this. With this thing in my mind I have thoroughly examined the evidence let-in by the parties. As rightly pointed 17 O.S.No:1566/2007 out by Sri.KBSM, Advocate in the plaint cause title itself the PW1 gives his residential address as well as that of defendant no.1 as one and the same and that can be ascertained from the cause title. So one thing is undisputed that PW1 and defendant no.1, being the father and natural son, are living under one roof. It is also not the case of PW1 that his relationship with defendant no.1 is strained, atleast subsequent to execution of the release deed. First of all regarding when they came to know about the said deed the plaintiffs have not convincingly pleaded. In Para-13 they together submit that they were not aware of the release deed for very long time, but they came to know when defendant no.1 informed plaintiff no.1/PW1 recently about the execution of the release deed and gave copy thereof. Then the PW1 sent the said copy to the second plaintiff. Having so pleaded that they came to know about it "recently" in Para-16 they further submit that the cause of action for the suit arose on 8.12.2003 and subsequently around in the "early part" of 2006, when the plaintiffs came to know about the execution of said deed. Thus at one stage they submit that they came to know recently and in the next breath they allege that in the early part of 2006 they came to know the execution of release deed. It is on the record that this suit was filed on 8.1.2007, so if according to them they had come to know recently it infers that about one or two months earlier to the filing of the suit, but their another contention that they came to know in the early part of the year 2006 exactly runs contrary to the first version. Moreover knowledge of the 18 O.S.No:1566/2007 execution of the release deed being the special knowledge of plaintiffs more particularly of PW1, primarily he has to discharge his burden to show that infact he came to know recently and without wasting time he has knocked the doors of the court. Without discharging that solemn burden he cannot simply escape and say that it is for the contesting defendants to prove his knowledge. Infact the cross-examination of PW1 shows that he had knowledge of the release deed immediately after its execution. I would demonstrate this with his own version. In Para-20 of his cross-exam at the very beginning line he admitted that even now he is residing with defendant no.1 in the same house at Mumbai and then at the end of Para-26 on Page no.10 he stated that he has not cancelled the Power of Attorney produced at Ex.P1, executed in favour of his said son viz; defendant no.1. This shows that even now PW1 is in cordial relationship with his son. This rules out his alleged ignorance of execution of release deed. Had the relationship of PW1 was stained subsequent to the execution of the release deed, certainly he would have cancelled the Power of Attorney/Ex.P1 and he would not have allowed it to continue even at this juncture.
20. The another important thing is that as elicited from the mouth of PW1 in that very Para-26 of his cross exam khata of the suit property is not in his name after 2003 and further as admitted by him in Para-29 at 8th line from the below the schedule 'B' property shown in the release deed produced at Ex.P2 was released to the defendant no.2 under the said 19 O.S.No:1566/2007 document and he do not know who is paying that tax to the said property after it was released. It is a very common understanding that an owner of an immovable property is expected to pay taxes to the Corporation in respect of the property he owns. Merely on the reason that this PW1 has executed Power of Attorney to manage his properties to his son (PW1), he cannot exhibit his total ignorance, even with regard to payment of annual taxes. Then at the fag end of his cross- exam on Page No.13 i.e. at the end of Para-29 he replied that he do not know whether katha was mutated based on the release deed. These replies show that he had the knowledge of the release deed and with a deliberate intention to hide that fact he tried to give artificial explanations.
21. In K.S.Nanji and Company v Jatashankar Dossa and others case mentioned supra at Para-11 of its judgment, the Hon'ble Supreme Court held that where a person has right to sue within three years from the date of his coming to know of a certain fact, it is for him to prove that he had the knowledge of the said fact on a particular date, for the said fact would be within his peculiar knowledge. In the instant case the conduct of PW1 living along with his son (defendant no.1) under one roof even at this stage and the conduct of defendant no.1 entering appearance through his counsel before service of summons and in not contesting the suit and not making him available for cross-exam show that, it is the PW1 at his instance this defendant no.1 remained aloof from the proceedings so as to prevent the truth coming out from his mouth. Therefore the 20 O.S.No:1566/2007 contention of the plaintiffs that they came to know recently before filing of the suit cannot be accepted. So even if Dw.1 was not able to say when the plaintiffs came to about the released deed, still it will not help them in proving this issue.
22. When they themselves allege in Para-16 of the plaint that cause of action for the suit arose on "8.12.2003", the day on which Ex.P2 was executed, as per Sec.9 of the Limitation Act once the time begun to run no subsequent disability or inability to institute the suit or make an application stops it, therefore once the cause of action arose to the plaintiffs on the date of execution of the release deed they ought to have filed this suit before 8.12.2006, the day on which three years period as contemplated under Article-59 of the Limitation Act expires for cancellation of or setting aside of an instrument.
23. While computing the period of three years I have omitted the day of execution of release deed i.e. 8.12.2003 in terms of Sec.12(1) of the Limitation Act which lays down that while computing the period of limitation the day from which such period is to be reckoned, shall be excluded, therefore if three years period is counted or computed from 9.12.2003 it expires on 8.12.2006, hence this suit having been filed on 8.1.2007 definitely beyond the period of limitation. In view of the above discussion the contention of Sri.HSD Advocate that defendants have to prove the knowledge of PW1 about the release deed and further that there is no cross-examination of 21 O.S.No:1566/2007 PW1 on this aspect etc., is liable to be rejected. Consequently I answer this issue in the affirmative.
Issue No.3 & 4:
24. Since these two issues go to the root to the contentious document i.e. release deed/Ex.P2 I have taken them simultaneously.
25. Before I start my discussion on the issues in hand it is quite necessary to explain the history behind this third round of litigation between these parties for the same property. That one M.S.Pandit had two wives and through first wife the defendant no.2 born to him and through the second wife the plaintiffs and another son by name Balakrishna, who died without marriage on 20.7.1981, were born. The death certificate of the said son is produced at Ex.P5. During his life time the said M.S.Pandit purchased property in site no.40/B and 41 situating at Kumarakrupa road, Bangalore from his own earnings and he also applied for allotment of vacant site appurtenant to the said two plots. When he wanted to celebrate the marriage of his eldest son viz, defendant no.2, he settled his self-acquired properties under registered settlement deed dt.30.4.1959, thereafter before his application for allotment of appurtenant land was finalized he died on 10.6.1963. Under the Settlement Deed of 1959 he had settled property no.40/B consisting of constructed house to the defendant no.2 whereas property no.41, which was vacant site, was settled to the plaintiff no.1 and said Balakrishna. It transpires that the 22 O.S.No:1566/2007 said M.S.Pandit was desiring to settle the appurtenant vacant site to the plaintiff no.1 and said Balakrishna since considerable property was settled to the defendant no.2. From the records it is also evident that in the year 1959 the plaintiff no.1 and Balakrishna were minors and after attainment of their age of majority there was partition in the year 1970 between themselves and the defendant no.2 and thereby they distributed the remaining properties of the family of Bangalore and Mumbai.
Thereupon on the strength of the declaration given by the defendant no.2, which is produced at Ex.P3, the plaintiff no.1 and Balakrishna took the sale deed from BDA on 28.11.1979l and it is at Ex.P4. Thus they asserted their title to that appurtenant land as absolute owners and also some part of that land was exclusively leased by them to the Indian Oil Corporation to run the petrol bunk. Thereafter the litigations started between the brothers. The defendant no.2 being a step brother filed a suit for partition and separate possession of his share in the appurtenant land allotted under Ex.P4 through suit at O.S.No:1073/1979 which was renumbered as O.S.No:6027/80 against his said brothers and step mother. The said suit was contested and it was dismissed vide judgment dt.29.9.1983 by this court. Against the said findings the defendant no.2 approached the Hon'ble High Court by filing RFA and there also he was unsuccessful. The plaintiffs have produced the certified copies of the judgment in O.S.6027/1980 at Ex.P6 and decree passed in it at Ex.P7 and judgment of the Hon'ble High Court at Ex.P8. It seems that not being satisfied with having lost his case in the trial court and in the Hon'ble High Court the 23 O.S.No:1566/2007 defendant no.2 instigated his wife and son to file suit for declaration, partition and for possession at O.S.No:1292/98 and in that suit he was arrayed as defendant no.3. In that case in addition to the appurtenant land which was allotted under Ex.P4, another portion for which only Lease cum Agreement of Sale was executed by CITB and which is shown as 'B' schedule property in the hand sketch annexed to the release deed was also included. In that case after hearing the parties on preliminary issue the 1st Addl. City Civil & Sessions Judge, Bangalore rejected the claim of wife and children of the defendant no.2 holding that the said prayer is hit by principles of res judicata. The plaintiffs have produced the certified copy of the said order at Ex.P9. It is pertinent to note these Ex.P6 to P9 were marked during the cross- examination of DW1. Therefore in so far as these aspects are concerned there is no dispute between the parties. Already validity of declaration of defendant no.2 marked at Ex.P3 is upheld by this court in O.S.No:6027/80 and it is affirmed by the Hon'ble High Court. Similarly it is also held that appurtenant land to the vacant site no.41 which is shown as schedule 'A' and 'C' in the hand sketch annexed to the release deed is the absolute property of the plaintiff no.1 and late Balakrishna. It is further held that on the death of said Balakrishna his share was succeeded by the plaintiffs, who are the full brother and sister of the deceased. Even it is held that this defendant no.2 has no share in the interest of his step mother and brother by referring to Sec.18 of the Hindu Succession Act, which lays down that heirs related to an intestate by full blood shall be preferred to heirs related by half blood, if the 24 O.S.No:1566/2007 nature of the relationship is the same in every other respect. According to me the judgment of this court produced at Ex.P6 lucidly explains the conduct of the defendant no.2 and his greediness as well as the magnanimity of plaintiff no.1 and late Balakrishna. If one reads the said judgment things will be more clear. However I do not find any material in upholding the contention of plaintiffs that against findings in O.S.No:1292/98 the wife and children of the defendant no.2 filed RFA and that was also dismissed. At any rate it is clear that already two rounds of litigations are over and now the third round is at the stage of culminating.
26. With the above explanation to this history of litigation now I will advert to the plaint averments. In Para-6 the plaintiffs alleged that the defendant no.1 is young not well versed with legal implications of various acts and he is not aware of legal technicalities, then in Para-8 they proceed to allege that the said defendant no.1 being emotionally charged, dancing to the tune of defendant no.2 executed the impugned release deed (Ex.P2). Thus, firstly they attack the prudency of defendant no.1 and secondly the release deed. In this context let me examine whether there is any pinch of truth in the first version. For this at the cost of repetition I would refer to the cross-examination of PW1 recorded at Para-20 and 26. There it was elicited from him that the defendant no.1 is a B.Sc graduate and he is doing his independent business of dismantling of unused ships. It is also elicited he is capable of managing his business on his own. These things rule out their contention that he is not well versed with 25 O.S.No:1566/2007 legal implications of various acts and is not aware of legal technicalities. The further allegation that he danced to the tune of defendant no.2 is also liable to be rejected for simple reason that at the end of Para-26 of his cross-exam PW1 admitted that he has not cancelled the GPA/Ex.P1 even now. Apart from that the very own document produced by the plaintiffs viz; that Ex.P1 in the preamble recites that the PW1 is desirous of appointing a "fit and proper person" to look after all his immovable properties, business and other affairs and when he requested his elder son (defendant no.1), to act on behalf of him and to manage and also to look after the affairs he consented for it. It is material to note that this defendant no.1 is not the only son of PW1, he has one more son by name Vishal Sripathi Pandit as evidenced by Ex.D5. If at all this PW1 and plaintiff no.2 doubted the ability and confidence of defendant no.1, PW1 ought not to have given power of attorney to him nor he would not have allowed him to continue to hold that power even after execution of release deed.
27. With certain intention I am referring to the plaint allegations and recording my finding. It may be noted that in Para- 10 of the written statement the contesting defendants pleaded that this suit is an outcome of fraud and collusion between the plaintiffs and the defendant no.1, so I have to find out whether there is any truth in the said contention. In this regard I may also refer to the order sheet of this case right from the beginning. It may be noted that though this suit was filed in January 2007 there was no immediate appearance of the defendants. The entries in the order sheet and endorsement of the Process Servers show that 26 O.S.No:1566/2007 the summons to the defendant no.1 was not served for obvious reason that he is residing at Mumbai. Repeatedly summons were issued to the defendant no.1 as well as on the reporting of death of defendant no.2 to his L.Rs. That being the case when the summons was again reissued vide order dt.19.3.2008 to both the defendants since death of defendant no.2 was not reported till then, fixing the next date of hearing as 7.6.2008, though the Process Server returned the summons of defendant no.1 with brief shara that it is returned for want of plaint copy without even sending it to the Bombay address and very same thing is also recorded in the order sheet, on 7.6.2008 defendant no.1 appeared through his counsel. It shows that PW1 is hand-in-glove with defendant no.1 admittedly they are father and the son and residing in the very same house. Added to this except filing vakalath and appearing through his counsel, defendant no.1 thereafter did not turn up to the court, therefore I have to accept the allegation of contesting defendants that defendant no.1 is colluded with plaintiffs. I would come to the second attack of plaintiffs bit later ie, validity of Released deed.
28. Now let me turn to the next plaint allegation that this PW1 did not authorize the defendant no.1 to execute the release deed under Ex.P1. On this lot of arguments were advanced by both sides. Pleading to this effect can be seen in Para-9 of the plaint. During the argument referring to the hosts of decisions Sri.HSD, advocate vehemently submitted that power of attorney has to be construed in its strict terms and it is not open to the attorney to act beyond the parameters of said authority. It was his 27 O.S.No:1566/2007 specific contention that the contents of the power of attorney/Ex.P1 only enable the defendant no.1 to manage the affairs and other immovable properties of PW1 and though it empowered him to sell the properties, whether movable or immovable, that could have been done by the attorney only after receipt of consideration and not for charity. He invited my attention to Clause-6 and 10 of Ex.P1, to which a reference was made by the contesting defendants in the cross-examination of PW1, and argued that those clauses did not authorize the defendant no.1 to execute the release deed. In support of his submission Sri.HSD Advocate referred to the decisions reported at 2008(1) KLJ 1524 (R.Sandhyarani W/o T.A.Panduranga Setty v M.Mylarappa S/o late Mylappa), 2010 Cri.L.J. 1734 (Goa State Co- op. Bank Ltd., v Kurtarkar Traders), 2008(3) Mhlj 587 (Capt.Harcharanjit Singh Thind by his Constituted Attorney, Mr. Porus A.Doctor S/o Mr.Adi Doctor v Deeksha Thind and Ors.), AIR 1979 SC 553 (Syed Abdul Khader v Rami Reddy and Ors). AIR 1940 Madras 650 (P.L.S.S.Ramanathan Chettiar and Ors v K.M.V.V.Kumarappa Chettiar) and MANU/PH/1985/2010 (Krishan Kumar v Nand Lal and Ors). On the other hand Sri.KBSM, advocate for contesting defendants argued that the power of attorney is drafted in the widest possible terms and it authorized the defendant no.1 to execute the release deed. Even he argued that the conduct of PW1 shows that he acquiesced the execution of release deed by his son, therefore even assuming for a moment that Ex.P1 do not contain such authorization, the act of defendant no.1 stands ratified by the conduct of PW1. He further argued that 28 O.S.No:1566/2007 the contents of Ex.P1 has to be interpreted in the background of object and intent of its execution. In support of his said submission he referred to the decision reported at (1979) 2 SC 601 (Syed Abdul Khader v Rami Reddy and others). In reply to the said argument Sri.KSD Advocate contended that there is no pleading in respect of the defence of ratification which is set up only at the stage of argument, so it cannot be accepted.
29. Having gone through the decisions relied by the learned counsels and their line of arguments I fully agree with Sri.HSD. Advocate. When there is no pleading by the contesting defendants regarding the act of "ratification" they cannot set up the same at the stage of arguments, so it is ruled out. Now coming to the question whether the power of attorney i.e. Ex.P1 enabled or enables, as it is still in force, the defendant no.1 to execute the release deed? To answer this most vexed question I have gone through the said document again and again. As rightly argued by Sri.HSD Advocate the Clauses-6 and 10 do not directly speak regarding execution of 'Release deed' but from clauses no.29 and 32 one can notice that in the widest possible terms PW1 has authorized his son to deal with his movable and immovable properties including the business as if he would have done in the normal course of transactions. For the sake of convenience I have extracted them as it is:
29. "To enter into, make, sign, seal, execute, deliver, acknowledge, perform all engagements, contracts, agreements, deeds, declarations, bonds, assurances 29 O.S.No:1566/2007 and other documents, papers, writings and things that may be necessary or proper to be entered into, made signed, executed, delivered, acknowledged and performed for any of the purposes of these presents or to or in which I am or may be party or in any way interested.
32. "In general to do all other acts, deeds, matters and things whatsoever in or about my estate, property and affairs or concur with persons jointly interested with myself therein in doing all acts, deeds, matters and things herein either particularly or generally described as amply and effectually to all intents and purpose as I could do in my own proper person if these presents had not been made."
30. From their bare reading it can be seen that they authorized the defendant no.1 to deal with the properties and business of PW1 in a manner he wishes. The fact that in Clause-29 the PW1 authorized his son to enter into "deeds" to which I have given emphasis show that his attorney was fully competent and could have executed the release deed even without consideration.
It is true that in the decisions referred to by Sri.HSD Advocate, the Hon'ble Courts have held that when a power of attorney is to be construed it has to be construed strictly and there is no scope for widening the amplitude of such an instrument, the ratio laid down in those cases is inapplicable to the facts of this case. The reading of Ex.P1 manifestly show that PW1 empowered his son to do all 30 O.S.No:1566/2007 possible acts in the interest of the properties he possessed and the business he is running.
31. Now a question may also arise whether releasing of the schedule 'C' property under Ex.P1 was it in the interest of PW1? Answer to this can be found in the very cross-examination of PW1 at Para-23. Their it was elicited that in the year 1995-96 he had borrowed Rs.1,35,00,000/- from Laxmi Vilas Bank of Mumbai and in the year 2002 the said bank initiated the recovery proceedings against him, because of that reason he executed the Ex.P1. If this clinching evidence is read along with the recitals of the release deed viz; Ex.P2 which narrates the events in the family in thread bare, it is seen that because of the continuous disputes between the plaintiffs on one hand and defendant no.2 on the other hand, this PW1 was not able to deal with the suit property, sold by BDA under Ex.P4. It is also on the record that as suggested by Sri.HSD, advocate on Page no.7 of the cross-examination of DW1 in the last two lines except the 'C' schedule property shown in the hand sketch of release deed, rest of the property is now sold by the plaintiffs in favour of SNS Plaza. It shows that in order to liquidate his debts the PW1 was interested to settle the long standing disputes with defendant no.2 and for that purpose he engaged the defendant no.1 as his envoy and at his mediation the release deed was came to be executed leading to the clearing of way to PW1 to dispose of the 'A' schedule property. In the release deed at Para- 12 and 15 it is recited that the said instrument is the result of the intervention of friends and well-wishers of the families of both releasor and releasee and also to amicably settle the matter 31 O.S.No:1566/2007 between them in a spirit of give and take. While getting advantage of having one more piece of land i.e. 'C' schedule property at no cost, which admittedly did not belong to him, the defendant no.2 also undertook not to claim his right over the 'A' schedule property. At the same time the defendant no.1 on behalf of PW1 declared that they would not come in the way of defendant no.2 in taking sale deed in respect of 'B' schedule property from the BDA. Thus a kind of giving and taking took place between both parties. I can only say that as beautifully observed in the judgment of O.S.No:6027/80, in order to buy the piece again with all his magnanimity PW1 executed the release deed through defendant no.1, therefore the contention like the power of attorney did not authorize his son to execute release deed etc., is liable to be rejected.
32. As observed in the Syed Abdul Khader's case by the Hon'ble Supreme Court whenever power of attorney is to be construed nevertheless it has to be construed strictly, at the same time the intention of the parties has also to be gathered from the surrounding circumstances. That is why I have examined the submissions of both sides from all angles
33. Then it was contended by Sri.HSD advocate that when this defendant no.2 admittedly had no subsisting right in the property released, there was no scope for execution of release deed in his favour and even if it is executed it will not have any force in the eye of law. On the other hand Sri.KBSM advocate submitted that since the M.S. Pandith paid the substantial amount 32 O.S.No:1566/2007 for allotment of appurtenant land, the defendant no.2 had right and interest in that property. According to me the submission of Sri.KBSM advocate cannot be upheld for the simple reason that by rejecting all his grounds and upholding the validity of declaration of this defendant no.2, produced at Ex.P3, this court has rejected his claim in O.S.No:6027/80. When the said findings have attained finality, it is not again open to him or to his L.Rs to submit that they have subsisting right in the schedule 'C' property, but the point is whether is it necessary that to release property in favour of another, the releasee must have interest in it? For this I refer to the book of learned Author Mulla titled as "The Transfer of Property Act", published by Tripathi, 7th edition. In the said book on Page no.51 dealing with Sec.5 of the T.P. Act and the word "relinquishment", the learned author observes that a relinquishment is not an alienation, unless an intention to transfer is found to exist, as when it is in favour of a person having no interest. It is further observed that where the person in whose favour the "release" is executed and gets rights by virtue of the release, the deed may amount to transfer. Therefore though the defendant no.2 had no subsisting right in the schedule 'C' property as on the date of release, still the releasor could have released his right in his favour. So the contention of Sri.HSD advocate that the impugned release deed could not have been executed in favour of defendant no.2 cannot hold any water.
34. It was further contended by Sri.HSD, advocate that the copy of the joint affidavit marked as Ex.D5 has no relevance in the case and without producing the primary document the contesting 33 O.S.No:1566/2007 defendants cannot be permitted to rely on such document. In support of the said argument he referred to the decisions reported at AIR 2007 SC 1721 (Smt.Y.Yashoda v Smt.K.Shobha Rani) and ILR 1988 KAR 3347 (Avalappa v Krishnappa). At the same time with all abundant caution he also urged that the ratio laid down in that case cannot be used to attack the copy of the power of attorney produced at Ex.P1 as it is also a secondary document. On the other hand referring to the decision reported at (207) SCC 730 (J.Yashoda V K.Shoba Rani) Sri.KBSM, Advocate submitted that the said affidavit has got its own relevance and it was sworn before the very same notary at Mumbai, before whom Ex.P1 was notarized. He also submitted that before producing Ex.D5 he filed interim application, sought permission to produce the said document and even he got it re-attested from the very same notary, thus he prayed to reject the submission of the plaintiffs counsel. I do find that there is some force in the submission of Sri.KBSM, Advocate. As rightly argued by him, this Ex.D5 i.e. affidavit dt.21.8.2003 was re-attested by the notary L.Raju at Mumbai, who notarized the power of attorney/Ex.P1. Moreover while exhibiting the said document plaintiffs did not raise objection. Having kept quite then, now it is too much for them to dispute the correctness of it and also the manner of its production. Under the said affidavit PW1, defendant no.1, another son of PW1 and the wife of PW1 jointly declared that they would not come in the way of taking sale deed by defendant no.2 from BDA which has executed lease cum sale agreement in respect of 'B' schedule property. In the schedule to the affidavit description of the said 34 O.S.No:1566/2007 property is also furnished. On behalf of PW1 as his Power of Attorney Holder/ defendant no.1 has signed and he has also separately signed for himself. Similarly the other two deponents have also signed it. It may be noted that this affidavit is followed by the execution of the release deed on 8.12.2003 and recitals to that effect were narrated in that release deed, therefore the plaintiffs cannot take shelter of the observation made in the decisions cited by them. Before invoking the ratio laid down in any case court has to see the facts of given case and examine them.
35. Sri.HSD, Advocate also attacked Ex.D5 contending that there is no pleading with respect to the said document in the written statement, therefore the contesting defendants cannot take advantage of it. In this regard less said the better. In Para-9 of the written statement on Page no.4 the defendants have pleaded that such an affidavit was sworn to by PW1 and his family members, therefore the said argument also does not hold any water. It was further contended by Sri.HSD, Advocate that plaintiffs dispute the signature of defendant no.1 and other members of the family of PW1 on the said Ex.D5, therefore unless the said document was sent for comparison of the signatures of said persons with their admitted signatures, the genuinity of the said document cannot be accepted. He also argued that court itself cannot compare the admitted signature of defendant no.1 available in the file with the signature of said person on Ex.D5 by referring to the decisions reported at AIR 1996 SC 1140 (O.Bharathan v K.Sudhakaran and another) and AIR 2008 SC 1012 (Gaudiya Mission v Shobha Bose and Anr). It 35 O.S.No:1566/2007 is true that in the said decisions it is held that by invoking the power vested in it U/Sec.73 of the Evidence Act it is held that trial courts should not embark to compare the admitted and disputed signatures on their own without recourse to the opinion of the experts. In my earnest opinion the said ratio is also inapplicable to the case in hand since neither defendant no.1 nor the other signatories to it, who are not parties to the suit, have disputed the genuinity of their signatures on the said document. Atleast if the defendant no.1, who entered appearance through his advocate, had disputed his signatures on Ex.D5, certainly the arguments of plaintiffs counsel could have been upheld.
36. It is further argued by Sri.HSD, Advocate that there is no 'B' schedule property as shown in the release deed and it is a fictitious one. In this context he also drew my attention to the cross-examination of DW1. Regarding this aspect I too find that there is some amount of cross-examination of DW1 on this point and her replies are not convincing one, but at the same time it should be borne in mind that the existence of 'B' schedule property is admitted by PW1 himself and the inconsistent suggestions of plaintiffs during the cross- examination of DW1 prove the existence of said property. It may be noted that in his further cross-examination recorded on 12.2.2015 the PW1 admitted the entire sketch annexed to the release deed and also the boundaries mentioned therein. He also admitted the existence of 'B' schedule property to the north of 'C' schedule property, released under the said deed.
36 O.S.No:1566/2007Apart from that in the cross-examination of DW1 on Page No.10 in the middle portion the plaintiffs themselves suggest that in the question form that their family was only a expecting the conveying of the said schedule 'B' property by the BDA, but was not actually conveyed. This suggestion itself proves the existence of 'B' schedule property and non-conveying of it under the sale deed produced at Ex.P4. Therefore any amount of cross-examination by Sri.HSD, Advocate and the inconvincing reply of DW1 will not help the plaintiffs.
37. Then Sri.HSD, Advocate submits that contesting defendants are not in possession of the schedule 'C' property and they have not produced evidence to prove their possession. To substantiate the said argument he referred to the photographs marked at Ex.D1 to D4. It is true that as elicited in the cross-examination of DW1, the Ex.D1 shows the construction of SNS Plaza at upper part of it and Ex.D2 shows the existence of house belonging to the contesting defendants in property no.40/B and also the gate covering 'C' schedule property and locking of that gate. The Ex.D4 also shows the locked gates. In the cross-examination of DW1 on Page no.11 in furtherance of their contention plaintiffs suggested that they are in possession of the schedule 'C' property, but in contrary to the said suggestion in his cross-exam on page no.13 the PW1 conceded that the keys of that gate are in the police station, however denied that the said keys are given to the police by the contesting defendants. So one thing is clear that plaintiffs are not in possession of the schedule property and 37 O.S.No:1566/2007 they are not permitted to enjoy it as keys lie with the police department. In the given situation it is difficult to admit their submission that they were in possession of the said property atleast on the date of suit. Admittedly it is a suit for cancellation of release deed without further relief of possession. As elicited in the cross-examination of PW1, to which I have already made reference, in pursuance to the release deed khatha of the schedule 'C' property is changed in the name of defendant no.2 and this PW1 is not paying tax subsequent to the year 2003. Though an afterthought an explanation was given by PW1 by stating that since he has already executed an agreement of sale in respect of the appurtenant in the year 1997 itself, so he is not paying the tax etc., he did not produce the said agreement of sale or the sale deed to prove the alienation. Therefore it is proved beyond shadow of doubt that plaintiffs are not in possession of the schedule 'C' property. As per Sec.34 of the Specific Relief Act, in a suit for declaration if it is found that plaintiff is out of possession as on the date of suit, in addition to the relief of declaration he must also seek the relief of possession. In the instant case having prayed for cancellation of release deed the plaintiffs omit to seek the further relief of possession nor they are able to prove their possession. During her cross-examination DW1 explaining the khatha certificates and khatha extracts produced at Ex.D6 to D9 she stated that Ex.D6 and D8 are in respect of 'B' schedule property whereas Ex.D7 and D9 are in respect of 'C' schedule property. This evidence is not challenged in her further cross-
38 O.S.No:1566/2007examination. On the other hand on Page No.8 of her cross- exam at about fourth line the plaintiffs themselves suggested that based on the release deed (Ex.P2) the DW1 got changed the khata in their names in respect of the schedule 'C' property. So again and again I find that the submission of plaintiffs that they are in possession of suit property cannot be accepted by any stretch of imagination. The probability is that the contesting defendants being residents of Bengaluru and the suit property being adjoining to their permanent residence, it is they who can enjoy the suit property and not these plaintiffs who do not reside within the vicinity of that property, infact PW1 and defendant no.1 are permanent residents of Mumbai.
38. As a last resort the plaintiffs also canvassed that the evidence of DW1 show that she is not sure about the execution of release deed, in whose custody the keys of the gate are lying and she do not know when PW1 came to know about the execution of the release deed as she did not deny suggestions made during her cross-exam, therefore her evidence is liable to be rejected. On hearing the said submission it appears to me that plaintiffs are trying to make a case out of the weakness of the evidence of DW1 forgetting the inherent weakness in the evidence of PW1 and also their pleadings. It is well settled that plaintiffs have to stand on the strength of their own case and they cannot imagine to succeed on the weakness of the defendants. Therefore once again I find that there is no case for the plaintiffs even after the fact that the defendant no.2 exploited the goodness of PW1. It is the legality of the 39 O.S.No:1566/2007 document that has to be examined and not other extraneous factors. The conduct of PW1 and plaintiff no.2 prove beyond shadow of doubt that they themselves abandoned the right of PW1 over the other schedule property and PW1 acquiesced to the execution of the release deed. Therefore plaintiffs are estoppled from denying its correctness, consequently the release deed is very much binding on them. Hence I answer issue no.3 in the affirmative whereas issue no.4 in the negative.
Issue No.5:
39. During the argument Sri.KBSM, Advocate questioned the filing of suit jointly by the plaintiffs as admittedly Plaintiff no.2 is not party to the General Power of Attorney or to the release deed. It was his submission that cause of action for the PW1 is different from the alleged cause of action for the plaintiff no.2 and they ought not to have filed suit jointly. It was his contention that it is a clear case of mis-joinder of cause of action. In reply to the said argument Sri.HSD, Advocate submit that there is no pleading on this new allegation, therefore it cannot be entertained at this stage. On going through the written statement I too find that no such plea is taken by the contesting defendants, therefore now it is not open for them to urge the same. As conceded by the contesting defendants themselves the plaintiff no.2 is not a party to the release deed and her right in the 'C' schedule property will not be affected in any manner, however she 40 O.S.No:1566/2007 cannot contend that the said release deed is not binding on her and even she cannot seek for cancellation of it when she is not a party to it. So one thing is clear that her right in the 'C' schedule property remains unaffected, inspite of it the reliefs she is seeking along with the PW1, cannot be granted for the reasons aforesaid mentioned. Thus, in the light of the discussion made above and in view of findings on issue no.3 and 4 and also on issue no.2, it is needless to say that the plaintiffs are not in entitled for any reliefs. Accordingly I answer this issue also in the negative and proceed to make the following:
ORDER Suit is dismissed.
Partiers shall bear their own costs.
Office to prepare the decree after payment of deficit court fee by the plaintiffs.
(Dictated to the Judgment Writer, transcription computerized, then corrected and pronounced by me in open court, this the 7th day of November 2015) (RON VASUDEV), III Addl. City Civil & Sessions Judge, Bengaluru.41 O.S.No:1566/2007
ANNEXURE List of witness examined for the plaintiff/s side:
PW1 S.S.Pandit List of documents exhibited for the plaintiff/s side:
Ex.P1 General Power of Attorney Ex.P2 Release deed dt.8.12.03 Ex.P3 Declaration dt.15.4.1968 Ex.P4 Sale deed dt.28.11.79 Ex.P5 Death certificate Ex.P6 Judgement in O.S.6027/80 Ex.P7 Decree in O.S.6027/80 Ex.P8 Certified copy of the order in RFA.222/84 Ex.P9 Certified copy of the order in O.S.1292/98
List of witness examined for the defendant/s side:
DW1 Lakshmi Vijaykumar List of documents exhibited for the defendant/s side:
Ex.D1 to D4 Photos
Ex.D5 Copy of affidavit
Ex.D6 & D7 Khatha certificates
Ex.D8 & D9 Khatha extracts
(RON VASUDEV),
III Addl. City Civil & Sessions Judge,
Bengaluru.
42 O.S.No:1566/2007
Judgment pronounced in open court vide
separate order
ORDER
Suit is dismissed.
Partiers shall bear their own costs.
Office to prepare the decree after
payment of deficit court fee by the
plaintiffs.
III Addl. City Civil & Sessions Judge,
Bengaluru.