Bangalore District Court
Aruthur R. V. Towt vs Mrs. Crystal Mayes @ Ellen Crystal ... on 2 December, 2019
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Govt. Of Karnataka
C.R.P.67] TITLE SHEET FOR JUDGMENTS IN SUITS
Form No.9(Civil)
Title sheet for AT MAYOHALL UNIT, (CCH-29) BENGALURU.
Judgment in suits
(R.P.91)
Present: Smt. B.S. Bharathi, B.Sc, LL.B.
Dated: This the 2nd day of December 2019
Original suit No.26280/2014
Plaintiffs:- 1. Aruthur R. V. Towt,
S/o Hedley R. Towt,
Aged about 61 years,
R/at No.44, William Hovell Drive,
Endeavour Hills, Victoria-3802,
Australia.
2. Adrian Maxwell Kennetha Shedden Jnr.
S/o Adrian Maxwell Kenneth Shedden Snr
(Deceased),
Aged about 55 years,
R/at No.29, Stoneleigh Avenue,
Boronia, Victoria-3155,
Australia.
Both plaintiffs represented by their GPA
Holder,
Mr. Parameshwaran Subramani,
S/o Late L.P. Aiyar,
Aged about 68 years,
R/at No.7/1, Campbell Cross Road,
P.O. Viveknagar, Bangalore-560 047.
(Pleader by: M/s Dua Associates)
V/s
2
Defendants:- 1. Mrs. Crystal Mayes @ Ellen Crystal Rosemary
Albert,
D/o Late George Reginald Upshon,
Aged about 52 years,
R/at No.1, Claret Street,
Doveron 3177,
Victorial Melbourne,
Australia.
2. Mr. Azeez Mohammed,
S/o Late Mohammed Dada,
Aged about 64 years,
3. Mrs. Farida Azeez,
W/o Azeez Mohammed,
Aged about 60 years,
4. Mr. Adil Azeez,
S/o Azeez Mohammed,
Aged about 40 years,
5. Mr. Adil Azeez,
S/o Azeez Mohammed,
Aged about 40 years,
6. Mr. Azeem Azeez,
S/o Azeez Mohammed,
Aged about 31 years,
Defendants 2 to 5 residing at,
Prestige ORCHID,
Flat No.01 & 101, No.37,
Berlie Street, Langford Town,
Bangalore-560 025.
(Defendant No.1-Exparte, by : Sri. KS Advocate for D.1 to D.3,
Sri. NS ASB Advocate for D.4, Smt. SP Adv., for D.5)
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26.08.2014
Date of Institution of the suit
Nature of the (Suit or pro-note, suit for
declaration and possession, suit for Declaration and
injunction, etc.) Possession
Date of the commencement of recording of 20.04.2016
the Evidence
Date on which the Judgment was 30.11.2019
pronounced
Year/s Month/s Days
Total duration 05 03 04
JUDGMENT
This suit is filed by the plaintiff against the defendant for declaring the power of attorney dated 19/05/1983 executed by Mrs Dorothy Mavis Shedden to Crystal Mayes @ Ellen Crystal Rosemary Albert ceased and became ineffective on the death of Mrs Dorothy Mavis Shedden on 29/07/2004. Consequentially declare that the absolute sale deed dated 20/04/2006 executed in favour of defendant Nos.2 to 5 by defendant No.1 is null and void and not binding on the plaintiffs and for directing the defendants 2 to 5 to deliver the sale deed dated 20/04/2006 to the jurisdictional Sub-Registrar for cancellation and direct the defendant Nos.2 to 5 to hand over 4 vacant possession of the scheduled 'B' property to the plaintiffs and for direction to the defendants 2 to 5 to give mense profits from 20/04/2004 till the date of suit and future mense profits and for handing over vacant possession of the schedule 'B' property to the plaintiff and for cost and other reliefs.
2. According to the first and second plaintiffs they have filed this suit in their capacity of executors of the will of Mr George Reginald Upshon and Mrs Mrs Dorothy Mavis Shedden as they are permanent residents of Australia are unable to present in India for filing, prosecution of the suit appointed 3 rd plaintiff as power of attorney Holder by giving power of attorney dated 04/02/2014.
2. The plaintiff herein were previously represented in the above suit by their power of attorney Mr Parameswaran Subramani who was appointed as per wide power of attorney dated 04/02/2014. Thereafterwords the plaintiffs by a certificate of execution of revocation of power of attorney dated 3/03/2017 have revoked the power of attorney registered in favour of Mr Parameswaran Subramani.
3. According to the plaintiffs there afterwards as per 5 power of attorney dated 03/03/2017 appointed Mr Xavier Benedict as their attorney for the purpose of representing them in the above petition.
4. According to the plaintiffs property bearing No.6, Old No. 12 ELYSIUM , Moyenville Road, Langford Town, Bangalore, more fully described as a schedule property originally belonged to Mr Patel Alexander Wallace, retired Customs Officer and Mr H.W. Wallace, who had sold the same to Mr V.G Upshon, Retired Electrical Foreman of South Indian Railway Company Ltd., under the registered sale deed dated 12/12/1941, which was registered in Sub-Registrar office Bangalore .
5. According to the plaintiffs, the said Mr. V. G Upshon by virtue of his last Will and testament dated 08/10/1951, bequeathed the property in favour of his wife Mrs. Alice Victoria Uphson who obtained Letter of Administration of the said Will on 30/06/1960 from the court of District and Sessions Judge, Bangalore in Misc. No.44/1960 on the file of the said court.
6. According to the plaintiffs that Mrs. Alice Victoria Upshon, did not have sufficient means for her livelihood and was depending upon the funds provided by her daughter and 6 son, that is Mr Mrs. Dorothy Mavis Shedden and Mr. George Reginald Uphson for her maintenance and subsistence. Mrs. Alice Victoria Upshon being the absolute owner of the property sold the same in favour of her children Mrs. Dorothy Mavis Shedden daughter of Mr V. G Uphson and Mr. George Reginald Uphson S/o Mr V. G Uphson under a registered sale deed dated 24/03/1971 registered as Document No.3264/70-71, in the Book-I, Volume 131, at Pages 31 to 36 in the office of Sub- Registrar, Civil Station, Bangalore and put them in possession of the same.
7. According to the plaintiffs Mrs. Dorothy Mavis Shedden and Mr V. G Uphson, were the joint and lawful owners of schedule property and were paying taxes to the Municipal Corporation and Khatha of the property stood in their joint names. Copy of the encumbrance certificate in Form No.15 issued on 20/04/2013 by the Sub-Registrar, Jayanagar in respect of the schedule 'A' property is produced.
8. According to the plaintiffs, the first defendant herein is the daughter of Mr George Reginald Upshon migrated to Australia in the year 1970 and his sister, Dorothy Mavis 7 Shedden migrated to Australia in the year 1972. As they were unable to take care of schedule a property, they executed a general power of attorney dated 31/12/1981 in favour of his daughter Crystal Mayes who is the first defendant herein and Mrs Dorothy Mavis Shedden also executed general power-of- attorney dated. 19/05/1983 in favour of Crystal Mayes who is the first defendant herein to manage the suit property.
9. According to the plaintiffs that as required under the then prevailing Foreign Exchange Regulation Act 1973, the first defendant sought permission from the Reserve Bank Of India for selling the suit property, to which the Reserve Bank Of India, as per Letter dated.08/04/1983, addressed to first defendant agreed to Mrs Dorothy Mavis Shedden and Mr. George Reginald Uphson selling their schedule a property.
10. According to the plaintiff first defendant herein representing that She had full authority of original owners to convey the schedule 'A' property entered into an agreement of sale with Mr. Mushtaq Ahmad dated 01/10/1981 in respect of the entire schedule 'A' property for a total sale consideration of Rs.6 lakhs and received an advance sum of Rs.1,25,000/- from 8 him. Subsequently on 12/01/1983 the first defendant once again entered into an agreement of sale with M/s Garden Enterprises for a total consideration of Rs.5,50,000/- only and received an advance of Rs.1,50,000/-. On 25/04/1984 she has full authority of original owners to convey the a schedule property enter into an agreement of sale with Mushtaq Ahmad dated 01/10/1981 in respect of the entire schedule property for a total sale consideration of Rs.6 lakhs and received an advance sum of Rs.1,25,000/- from him. Subsequently on 12/01/1983 the first defendant once again entered into an agreement of sale with M/s Garden Enterprises for a total consideration of Rs.5,50,000/- and received an advance of Rs.1,50,000/-. On 25/04/1984 the first defendant entered into a another agreement of sale with Navaneetham in respect of the Schedule 'A' property, for a total sale consideration of Rs.7 lakhs and received an advance of Rs.1 lakh. On 17/06/1984 the first defendant herein entered into a cancellation agreement with aforesaid M/s Garden Enterprises cancelling the above said agreement dated 12/01/1983 and on the same day that is on 17/06/1984 first defendant entered into another agreement 9 of sale with one Mr. Ninge Gowda and Smt.Navaneetham where in the hind portion of the schedule 'A' property was sold to see Smt. Navaneetham and the remaining portion of the 'A' schedule property was to be sold to Ninge Gowda. The said agreement of sale dated 17/06/1984 entered into between the first defendant and M/s Garden Enterprises in favour of Ninge Gowda and Navaneetham for a total consideration of Rs.2,50,000/-. A sum of Rs.2,00,000/- was received by M/s Garden Enterprises and the balance of Rs.50,000/- payable to M/s Garden Enterprises was agreed to be paid after registration. The total sale consideration mentioned in the agreement of sale dated 17/06/1984 was Rs.6 lakhs and advance of Rs.3,50,000/- was received and accounted for under this agreement as stated below.
A. Two lakhs paid by the purchaser Mr Ninge Gowda to M/s Garden Enterprises.
B. 50,000/- paid by purchaser Mr Ninge Gowda to GPA holder of the owners the first defendant herein.
10C Rs.1,00,00 paid by purchasers Mr Navneetham to the GPA holder of the owners the first defendant herein.
11. Pursuant to and in terms of the agreement of sale dated 17/06/1984 the said Mrs D.M. Shedden and Mr G. R Upshon represented by their GPA holder Mrs Crystal Mayes sold a portion of schedule 'A' property to an extent of 79.3 feet x 30 feet lying in the hind portion of the schedule 'A' property and 13.3 x 80 feet being a passage on the eastern side of schedule 'A' property for a total sale consideration of Rs.1,50,000/- as per registered sale deed dated 25/09/1984, registered in favour of Smt. R Navaneetham which was registered in the Sub- Registrar, Civil Station, Bangalore. The first defendant after receiving the entire sale consideration failed to inform the owners of the property to Smt. Navaneetham and also failed to inform them that she had collected the sale consideration from Smt. Navaneetham.
12. According to the plaintiffs in pursuant to the purchase Smt. Navaneetham applied for bifurcation of the portion of the property purchased by her under the sale dated 25/09/1984 11 more fully described as schedule 'C' property. The said property was bifurcated and a new No.6/1, ELYSIUM MOYENVILLE ROAD, Langford Town, Bangalore was given. Remaining portion that is described as the B schedule property measuring 80 x 65.9 feet as new No.6. Hence rear portion of the schedule 'A' property after bifurcation was allotted Sub No.6/1, khata was entered in the name of Smt. Navaneetham and she is in possession of the suit property
13. According to the plaintiffs that Mrs. D.M. Shedden died in Clayton Victoria Australia on 29/07/2004 and Mr G.R. Upshon died in Dandenong Victoria Australia on 19/06/2012
14. Prior to her death on 11/12/1998 Mrs D.M Shedden had executed Will in State of Victoria, Australia where in she had appointed her grandson Maxwell Shedden Jnr, the second plaintiff herein as the executor and trustee of the Will. As per the said will dated 11/12/1998 she had bequeathed the property in favour of second plaintiff that is her interest in the schedule 'B' property for the benefit of the second plaintiff. The second plaintiff acting as an executor of Will applied for probate of the Will in the jurisdictional of the court in Australia. A copy of the affidavit of the executor along with a copy of the will dated 11/12/1998 are produced herewith collectively. On 07/10/2017 12 the Supreme Court to Victoria probate jurisdiction granted a Probate of Will on 19.6.2012of Dorothy Mavis Sheddon who died on 19/06/2012.
15. Prior to his death Mr. G.R Upshon executed a will dated 24/03/2010 naming Mr. Arthur Roy Wayne Touwt, the first plaintiff herein as the executor of the will and trustee of his estates. On 09/08/2012 the Supreme Court of Victoria, Probate Jurisdiction granted a Probate of the Will of G.R Uphson who died on 19/06/2012. As per the said will dated 24/03/2010 the late G.R Upshon given his real and personal properties to the trustees upon trust for the sale with the power to postpone the sale of whole or any part of the said property and from this proceeds of the sale, directed the trustees to pay all the just debts and funeral and testamentary expenses and all the taxes and duties charges and estate. The balance remaining therein was called the residuary estate and was to be distributed in the shares stated therein amongst the beneficiaries named in the will. The will clearly mentioned that as the testator had already made provisions for his only child Crystal Rosemary Albert that is Crystal Mayes the first defendant herein by giving her his half share in the schedule 'A' property, he has not made any provisions for her in the residuary state.
16. According to the plaintiff and the first defendant herein under the name of Ellen Crystal Rosemary Albert filed a 13 suit against the first plaintiff in the Supreme Court of Victoria at the Melbourne, Commercial and Equity Division claiming that her father that deceased George Reginald Upshon to provide a responsibility to provide for Ellen's proper maintenance and support and that his reasons for excluding her from the will were flawed. The plaintiff submits that, in the suit hereinabove mentioned Ellen Crysta Rosemray the first defendant filed position statement dated 10/05/2013 wherein at paragraph 7 has stated here under.
"The letter states that a property at six Moyenville Road, Lonford Town, Bangalore, India valued by George at AUD dollar 300,0000 was owned in half shares by George and his sister, Dorothy Shedden. When George and Dorothy decided to stay in Australia authorized Ellen to sell the house. The house is sold in April 2006 for a AUD$255,310.00 From that amount AUD dollar 110.344.00 was paid to Ellen, with her half share being AUD dollar 55,172.00 and a Dorothy's half share also being AUD dollar 55,172. The amount of rupees AUD dollar 55, 173.
was paid to the real estate agent Sudhir Caushik as commission. At the time of sale, it was a long term tenant living 14 in the property K Sahadevan. K Sahadevan had been living in the property for about 20 years. As he is Indian K Sahadevan was required to be paid out in order to vacate the property with amount of rupees AUD dollar 86, 200.00 being paid to achieve this. Ellen believes that remaining AUD 3,593.00 was used for sundry expenses to do that sale.
As authorized by her father Ellen retained her half share. By the time that the transaction had concluded, Dorothy was no longer alive. As such Ellen trid to pay Dorothy's half share to Dorothy's grandson, Junior Adrian. However junior Adrian would not accept it as he believed Ellen should have opted a higher price for their house. However due to the long term tenant and litigation surrounding the property Helen opt and the highest price that she could. As the other of shares did not belong to her she paid the amount of rupees AUD dollar 55 172 back to that Azeez Mohammed. A letter dated 13/12/ 2012 from Sudhir Koushik that real estate agent is attached to this document and sets out the transaction".
17. According to the plaintiffs the plaintiffs were 15 completely taken back by the contents of the said statement filed by the first defendant till then plaintiffs were not aware of the schedule 'B' property had been sold. In order to avoid further cost expenses and inconvenience of litigation the parties to the suit agreed to settle all claims arising out of the death of deceased George Reginald Upshon, the administration of his estate, any right title and interest in the Bangalore property. In view of the settlement between the parties suit came to be dismissed without any adjudication.
18. In pursuant to the said settlement entered into between the parties the first plaintiff received a sum of AUS dollar 140 5000 from the first defendant acting in his capacity of the executor of the diseased G R Upshon's Estate, The first defendant herein unconditionally and absolutely released and relinquished any and all of her rights, title, interest in the property bearing old No.12 new No.6, ELYSIUM. Longford town Bangalore Karnataka and declared that she doesn't have any manner of right, title or interest over the said property
19. Shocked by this statement made by the first defendant in her position statement that she sold 'B' schedule 16 property to 2nd to 5th defendants, the plaintiffs imediately contacted their friends in Bangalore and asked him to go and verify the claims made by the first defendant. The plaintiff's were informed by their friends that the schedule 'B' property was being occupied by their second defendant and that he was cliaming title to the property. The plaintiffs through their authorized representatives applied for and obtained a copy of the sale deed dated 20/04/2006 executed by the first defendant acting as a general power-of-attorney holder of the vendors in favour of the second defendant to the fifth defendants.
20. At the time of executing absolute sale deed of the first defendant had no authority to sell the schedule property as the vendor Mrs D.M Shedden had died on 29/07//2004 well before the execution and registration of the sale deed. The general power of attorney dated 19/05/1983 on the strength of which the first defendant sold the property had stood automatically canceled and of no effect upon the death of their executant, namely Mrs Dorothy Shedden. On29/07/2004 the first defendant had no authority whatsoever to sell their schedule B property.
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21. Reading of the said sale deed dated 20/04/2006 executed by the first defendant in favour of the defendant 2 to 5 shows that defendant 2 to 5 were aware that title to the schedule property was not clear and that there were disputes and claims against it and that defendant Nos.2 to 5 had undertaken to clear all the disputes and claims at their own cost as the first defendant was unable to resolve the said disputes. Thus the defendants 2 to 5 were not bonafide purchasers for value without notice and therefore they are not entitled for protection under section 41 of Transfer Of Property Act.
22. According to the plaintiffs, the 1 st defendant has fraudulently claiming title to the 'A' schedule property and conveyed the same to defendant number 2 to 5 and hence the said sale deed dated 20/4/2006 is not binding on the plaintiffs.
23. The first defendant is made as party since he is a necessary party. Cause of action arose when defendant's claimed ownership on 20/04/2006 when absolute sale deed was executed and registered by the first defendant in favour of defendants 2 to 5 and on 10/05/2013 when the first defendant filed position statement wherein she has stated that she has 18 sold schedule 'A' property in April 2006 for AUD Dollar 255,310 to the second defendant and when the first plaintiff came to know that first defendant had sold the schedule property to the defendant 2 to 5 and same is within the jurisdiction of this court. Court fee is paid as per Court Fee & Suit Valuation Act and prays for decreeing the suit.
24. The defendants 2 to 5 appeared before the court through advocate and filed written statement denying all the contents as false and frivolous and specifically. However it is admitted that Mrs Dorothy Mavis Shedden and Mr George Reginald Upshon Joint owners of the schedule property and were paying taxes to the Munciple Corporation and khata of the property stood in their joint names in the earlier years. It is admitted that first defendant is that daughter of Mr George Reginald Upshon Who migrated to Australia in 1970 and similarly his sister Mrs Dorothy Mavis Shedden also migrated to Australia in the year 1972. It is admitted that Mrs Dorothy Mavis Shedden also executed a general power-of-attorney dated 19/5/1983 in favour of her knees crystal Mayes that is the first defendant. However the said power-of-attorney was not handed 19 over to them by the first defendant at the time of sale of property. It is stated that as required under the then foreign exchange regulations act 1973 the first defendant sought permission from Reserve Bank of India for selling the suit property to which the RBI as per letter dated 08/04/1993 address to the first defendant permitted the first defendant to sell the A schedule property. It is admitted that on the strength of power-of-attorney executed in her favour by the joint owners she had entered into an agreement of sale with Mr Mustaq dated 1/10/1981 conveying the schedule a property for a total consideration of Rs.6 lakhs and received in advance,of some of Rs.1,25,000 from him. It is admitted that subsequently on12/01/1983 the first defendant once again entered into an agreement of sale with M/s Garden Enterprises for a total sale consideration of Rs.5,50,000/- and received an advance of Rs.1,50,000/-. It may be true that on 25/04/1984 the first defendant entered into, yet another agreement of sale with Mrs R Navaneetam in respect of schedule A property for total consideration of Rs.7 lakhs and received advance of Rs.1 lakh. It may be true that on 17/6/1984 first defendant entered into a 20 cancellation agreement with aforesaid M/s Garden Enterprises canceling the above said agreement dated 12/01/1983 and on the same day that is on 17/6/1984 first defendant entered into another agreement of sale with one Mr Neenge Gowda and Smt R Navaneetahm wherein the hind portion of the schedule property was to be sold to Smt. Navaneetam and remaining portion of the schedule a property was to be sold to Mr Ninge Gowda. It is denied that the said GPA holder the first defendant has sold in the portion of the schedule A property to R Navaneetam . However these defendants noticed from the case on record that Smt. Navaneetham had filed an original suit bearing No.O.S.No. 4907/1995 on the file on the 14 th additional city civil and sessions Judge CCH-12 seeking for Judgment and decree to declare that the cancellation deed bearing number 2671/87-88 executed by the GPA holder of late Mrs DM Shedden and Mr George Reginold Upshon as null and void and to direct Sub-Registrar Bangalore to rectify the entries made in view of the said cancellation. The City Civil Court was pleased to dismiss the suit on 5/07/2007. She has preferred Appal before Honourable High Court of Karnataka and same was also 21 disposed of on 23/10/2008 in terms of the directions the said lady filed Miscellaneous Petition in 1016/2008 which is pending before City Civil Court. All other facts are specifically denied. According to that defendants 2 to 5 out of sale consideration of 1,47,50,000/- as per the advice and a request of the first defendant the payment has been released by this defendant is as under:
1. Rs.1,00,00 under the sale agreement dated 17/04/2006 through cheque number 572179 dated 17/04/2006 drawn on standard charted bank Cunningham Road Bangalore
2. Rs.50 lakhs to Mr K Sahadevan under cheque No. 572180 dated 20/04/2006 drawn on standard Charted Bank, Cunningham Road Bangalore
3. Rs.32,50,000 to Mr Sudheer Koushik under cheque No.572181 dated 20/04/2006 drawn on standard Charted Bank, Cunningham Road Bangalore.
4. Rs.64 lakhs paid to the Venders under cheque No.572182 dated 20/04/2006 drawn on standard Charted Bank, Cunningham Road Bangalore All the transactions were held in Indian currency. AUD$.1 10344 was paid to L And T along with her half share AUD $ 55 172 and Mrs Dorothy's half shares also being AUD$ 55 172.
The amount paid to Mr Sudheer Koushik was in Indian 22 currency. It is true that they have given an amount of AUD$ 86 200 being paid to achieve and Ellen used remaining AUD$ 3593 for sundry expenses. These defendants are not aware of the fact that as authorized by her father Ellen retained her half share by the time the transaction had concluded, Dorothy was no longer alive. These defendants are not aware that Ellen was ready to pay Dorothy s share to her grandson Junior Adrian and that he did not accept it as he believed that Yellen should have opted a higher price for the house. It may be true that due to the long term tenant and litigation surrounding the property Yellen opted the highest price that she could have these different rates.
25. It is specifically denied that the other half share did not belong to her, she paid amount of rupees AUD$ 55 172 back to the purchasers that is the first defendant and his opponent. It is stated that valuation made is not correct. According to the defendants they are bonafide purchasers for a value of the schedule property. According to the defendants since Smt. Navaneetam did not vacate the suit property, these defendants filed O.S.No.5113/11 before city civil court and 23 matter is now pending in RFA No. 1716 / 2014 before Honourable High Court of Karnataka.
26. According to the defendants the GPA holder Mr Parameshwara Subramani is not having any knowledge of the transaction in respect of the suit property from the very beginning and at no point of time he represented in any of the legal proceedings on behalf of the party is canceled. The power of attorney executed in favour of Mr Parameshwara Subramani by the plaintiff cannot with stand in Indian ports since it is not registered instrument under Indian registration Act and Stamp Act, no duty has been paid on the said instrument. It is necessary to impound the said GPA and collect the stamp duty in accordance with the law. Hence prays for dismiss the suit on several other grounds.
27. Based on the above said pleadings this court has framed the following issues.
1. Whether the plaintiff proves that Will dtd.19.05.1983 executed by Mrs. Dorothy Mavis Shedden which granted to the 1st defendant became in effective from 29.07.2004?
2. Whether the plaintiff proves that they are the owners of suit 'B' schedule 24 property?
3. Whether the sale deed dtd.20.04.2006 executed by the 1st defendant infavour of defendant No.2 to 5 is null and void?
4. Whether this court has no jurisdiction to try this suit?
5. Whether this suit is bad for non and mis-joinder of parties?
6. Whether the plaintiffs proves that Mr. G.R Upshon had executed a will dated 24.03.2010 infavour of the 1st plaintiff?
7. Whether the plaintiffs proves that the Supreme Court of Victroa probate jurisdiction granted probats of the will in favour of the 1st plaintiff?
8. Whether the court fee paid is in sufficient?
9. Whether the plaintiffs are entitled to the decree with mense profits as prayed for?
10. What order or decree?
Note: Issue No.4 and 8 are treated as preliminary issues.
ADDITIONAL ISSUES
1. Whether the defendant No.1 proves that power-of-attorney dtd.19/05/1983 executed by Mrs. Dorothy Mavis Shedden granted to the defendant No.1, is couples with interest and therefore, is irrevocable and valid even after the death of its 25 executor?
2. Whether the plaintiffs further prove that the sale deed dtd.20/04/2006 executed by the defendant No.1 in favour of defendant Nos.2 to 5 is liable to be canceled?
3. Whether the plaintiffs further proves that they are entitled for possession of the plain 'B' schedule property?
The issue Nos.1, 6 and 7 are framed by this court on 08.09.2015 and additional issue Nos.1 and 2 framed on 24.09.2016 are recasted as follows:-
1. Whether plaintiff proves that the GPA dtd.19.05.1983 executed by Mrs. Dorothy Mavis Shedden which granted to the 1st defendant became in effective from 29.07.2004?
6. Whether plaintiffs prove that Mr. G. R Uphson had duly executed his last will dtd.24.03.2010 while he was in a sound disposing state of mind?
7. Whether the plaintiffs prove that the probate of the will dtd.24.03.2010 of George Reginald Upshon is granted in favour of the 1st plaintiff by the Supreme Court of Victoria, Probate Jurisdiction?
Addl. Issue No.1: Whether the defendant Nos.2 to 5 prove that POA dtd.19.05.1983 executed by Mrs. Dorothy Mavis Shedden granted to the defendant 26 No.1 is coupled with interest and therefor, is irrevocable and valid even after the death of its executor?
Addl. Issue No.2: Whether the plaintiffs further prove that the sale deed dtd.20.04.2006 executed by the defendant No.1 in favour of defendant Nos.2 to 5 is liable to be canceled and delivered up to the jurisdictional Sub-
Registrar to record its cancellation?
Addl. Issue No.4: Whether the defendants prove that there is no cause of action for filing of this suit?
Addl. Issue No.5: Whether the defendants further prove that the suit of the plaintiff is barred by limitation?
Addl. Issue No.6: Whether the plaintiffs prove that Mrs. Dorothy Shedden had executed her last Will dtd.11.12.1998 while she was in a sound disposing state of mind?
Addl. Issue No.7: Whether the plaintiffs prove that the Supreme Court of Victoria, Probate Jurisdiction, granted probate of the will of Dorothy Mavis Shedden dtd.11.12.1988 in favour of the second plaintiff?
28. In order to prove their case, plaintiff No.2 examined as PW.1 and got marked 17 documents as 27 Ex.P1 to 17. On he other hand on behalf of defendants, defendant No.2 is examined as DW.1 and got marked 25 documents as Ex.D.1 to 25.
29. Written arguments filed by the plaintiff advocate and defendant advocate and decisions relied by them are taken into consideration.
30. My answer to the above issues are as follows:-
Issue No.1 : recasted
Issue No.2 : In the positive
Issue No.3 : In the positive
Issue No.4 : In positive
Issue No.5 : In Negative
Issue No.6 : recasted
Issue No.7 : recasted
Issue No.8 : Partly in the positive
Issue No.9 : Partly in the positive
Addl.Issue No.1: Recasted
Addl.Issue No.2: Recasted
Addl.Issue No.3: Partly in the positive
Recasted Addl.Issue No.1: In the positive Recasted Addl.Issue No.6: In the positive Recasted Addl.Issue No.7: In the positive Recasted Addl.Issue No.1: In the Negative Recasted Addl.Issue No.2: Partly in the Positive Addl.Issue No.4: In Negative Addl.Issue No.5: In Negative 28 Addl.Issue No.6: In the positive Addl.Issue No.7: In the positive Issue No.10 : As per the final order for the following:-
Note: Since Issue No. 1,6 and 7 Addl. Issue No.1 and 2 are recasted, the recasted Issue No.1,6 and 7 and recasted additional Issue No.1 and 2 are only answered REASONS
31. Since all these issues are connected they are taken together for giving reasons.
This suit is filed in respect of property situated in Bangalore by the plaintiff No.1 and 2. However, the claim of the plaintiff No.1 was rejected by this court as per the order of this court on on Order 7 Rule 11 of CPC. In respect of the same appeal is pending before Hon'ble High Court of Karnataka.
32. Therefore, this court has to consider that whether plaintiff No.2 is entitled for the relief sought by him that is in respect of half share of the B schedule property or not?
33. As admitted by both parties RFA No.89/2019 is pending before Hon'ble High Court of Karnataka and Hon'ble High Court of Karnataka has granted stay on 25/10/2018 for the said order of rejection of suit against plaintiff number one. As per the judgment relied by Advocate for defendant while arguing 29 on I A in this court of Honb'le Supreme Court between Chamundi mopeds versus Church of South India trust Association stay will not operate as revival of restoration of original position until the said order is reversed and hence this court cannot decide any rights of the plaintiff number one in this suit.
34. As admitted by both the parties Mrs Dorothy Mavis Shedden and Mr George Reginald Upshon were the owners of the suit property as per the registered sale deed dated 24/3/1971. As admitted by both the parties Mrs Dorothy Mavis Shedden and Mr George Reginald Upshon had appointed the first defendant crystal Mayes @ Ellen Crystal Rosemary Albert as power-of-attorney holder by executing Power of Attorney dated 31/12/1981 and 19/05/1983 respectively. First plaintiff herin is claiming his right through Mr. George Reginald and second plaintiff is claiming his right through Mrs Dorothy Mavis Sheddon. As stated above this court is considering only the prayer of the plaintiff No.2 in respect of half share of Mrs. Dorothy Mavis Sheddon in respect of the suit property.
35. It is the contention of the plaintiff No.2 who was 30 examined as PW.1 that Mrs Dorothy Mavis Sheddon died on 29/7/2004 and her death certificate is produced at Ex.P.17. According to PW.1 even though defendant number one who was the power of attorney holder of Mrs Drothy Mavis Shedden and even though defendants 2 to 5 who are the purchases of the suit property were aware of the death of Drothy Shedden at the time of execution of the sale deed by the power of attorney holder defendant Number one in favour of defendant number 2 to 5 on 20/4/2006 as per Exhibit P 10 the defendant number one has sold the suit property and defendant number 2 to 5 have purchased the suit property and therefore the said sale deed ie., Ex.P.10 is null and void and not binding on the plaintiffs. It is also the contention of that plaintiff number two that the said power of attorney executed by Mrs Dorothy Mavis Shedden Dated 19 /5/1983 in favour of defendant number one is seized and became ineffective after the death of Mrs Dorothy Mavis Shedden on 29/07/2004.
36. It is also the contention of PW.1 that Mrs DM Shedden had executed a Will dated 11/12/1998 bequeathing 31 her share of the property in favour of Plaintiff number one and plaintiff No.1 had obtained probate of the Will of Dorothy Sheddon who died on 29/07/ 2004 in Supreme Court of Victoria probate jurisdiction. It is the contention of the advocate for plaintiff number two that there afterwards they have obtained letter of administration by filing petition in the Hon'ble High Court of Karnataka in probate CP .No.1/2016 and CP.No.2/2016 as per section 228 of Indian Succession Act. However the said order of Honorable High Court of karnataka was not marked through PW1. But it was produced along with the written arguments stating that since it was a reported judgment and reported in 2016 SCC Online Karnataka page 3997 that is between Mr Parameswaran Subramani V/s nil the same can be considered by this court by taking judicial notice of the same as per evidence act.
37. Therefore the plaintiff No.2 is seeking for declaration to hold that that the sale deed executed by defendant number one in favour of defendants number two to five as null and void on the ground that the said sale deed was executed by the power of attorney holder after the death of the executant of 32 power-of-attorney and also this plaintiff number two is the owner of the suit property in view of the will executed by Mrs DM Shedden and the plaintiff number two has obtained the probate in Supreme Court of Victoria and letter of administration in Honourable High Court of Karnataka.
38. But it is the contention of the DW.1 that is defendant No.2 who was one of the purchaser of the suit property along with defendant No. 3 to 5 that since the defendant No.1 was having power of attorney from Dorothy Shedden and she was representing Dorothy Shedden and Mr George Reginald Upshon and she had also executed agreement of sale in respect of the suit property in favour of Mushtaq Ahmed dated 1/10/1981, M/s Garden Enterprises dated 12/01/1983, Mrs Navaneetam dated: 25/04/1984, cancellation of agreement of sale to Garden Enterprises dated: 17/06/1984, sale deed in respect of 'C' schedule property in favour of Smt Navaneetam , Deed of cancellation of sale deed dated 25/09/1984 on 15/03/1985, agreement of sale in favour of M.K.Sahadevan on 5/7/1985, agreement of sale in favour of Sudheer Koushik on 10/05/1996, power-of-attorney in favour of Mr Sudheer Koushik 33 in respect of suit property dated 10/051996, agreement of sale in favour of Anwar Pasha in respect of suit property dated 25/09/1981, and also by considering the letter issued by the reserve bank of India to the first defendant dated: 8/4/ 1983 permitting the first defendant to alienate the suit property and the actions of first defendant were also being ratified from time to time not only by the owners but also their legal heirs, under the bonafide impression he has purchased the suit property. According to DW.1several legal proceedings were also pending in respect of the suit property and this defendant number one was representing Mrs Dorothy Mavis Shedden and hence he had no reason to believe otherwise and therefore before he made purchase he held a meeting with all the persons who were claiming rights in the suit property and paid and settled all their claims and defendant number 2 to 5 purchased the suit property from the defendant number one. Therefore according to him he is the bona fide purchaser of the suit property and he is the absolute owner of the suit A schedule property.
39. As per the evidence of DW1 it is clear that DW1 is also claiming that he has purchased that suit property as per 34 the power of attorney dated 19/05/1983 executed by Mrs Dorothy Mavis Shedden and plaintiff is claiming the relief that the said power of attorney is ceased after the death of Mrs Dorothy Mavis Shedden on 29/07/2004 and therefore the said sale deed executed by defendant No.1 in favour of defendant No.2 to 5 is null and void. Therefore when both are claiming the relief basing on power of attorney and defendants are admitting the execution of power of attorney and defendants who are the purchaser of the suit property have not produced the said power of attorney, the court can consider the relief of the plaintiff even though the said power of attorney is not produced before the court and both are admitting that said document
40. A schedule property includes B and C schedule properties. Plaintiff No.2 has sought relief only in respect of B schedule property. As admitted by DW one in the cross- examination the suit os 5113/2011 filed by defendant 2 to 5 in respect of 'C' schedule property against R. Navaneetham for vacant possession of the suit property was dismissed by the City civil court cc H 26 . The said judgment was marked through 35 confrontation to DW one as exhibit P19. In the said judgment there is a finding that these defendants 2 to 5 are not the owners of C schedule property and the purchaser of the suit C schedule property that is R. Navneetham is the owner of the said property. Against the said judgment RFA is pending before Honorable High Court of Karnataka. Therefore the court has to decide regarding B schedule property only.
41. But in the examination in chief itself DW.1 at para No.6 he has stated that the actions of the first defendant were also be ratified from time to time not only by the owners but also their legal hairs. During the cross-examination he admits that cheque for Rs.32.5 lakhs was given back to him by crystal Mayes Stating that the said amount is the amount of Adrain Shedden senior and stating that Adrian Shedden senior will come to DW one and take personal delivery of that amount from DW one. He admits that the said amount is still with him. He also says that when he met Adrain Shedden Junior once he told that the said property is sold for less amount and he is not prepared to take the said amount. He says that he met Adrian Shedden junior after this suit was filed. He admits that the said 36 cheque was given to him in the year 2006 till 2014 he did not made any attempt to meet or contact Adrian Shedden junior. This evidence given by DW1 in the cross-examination clearly shows that when he purchased the property in the year 2006 he was aware that Mrs Dorothy Mavis Shedden was not alive. His evidence given in the chief examination stating that the actions of the first defendant were also being ratified from time to time not only by the owners but also by their legal heirs was the reason for him to believe otherwise also shows that the Second to Fifth defendants were aware of death of Mrs Dorothy Mavis Shedden. Even though DW one contends that he was not aware of the death of Mrs Dorothy Shedden in his evidence he says that there were many transactions in respect of the suit property and he settled all the transactions by paying the amount and also the payments of of the amounts are mentioned in that exhibit P 10 sale deed, Therefore he ought to have made proper enquiry regarding Owners of the suit property before purchasing the same. As per the latin word that is "buyer beware" defendants No.2 to 5 ought to have made proper enquiry of the owners of the suit property. On the other hand the 37 admission given by DW1 stating that he is still having 32.5 lakhs that is the amount of Adrian Shedden senior since 2006 clearly shows that he was aware of death of Mrs Dorothy Shedden and also he did not make proper enquiry before purchasing the suit property.
42. In this case as per exhibit P 12 the plaintiff No.2 has obtained probate of the will of Dorothy mavis Shedden which was executed on 11/12/1998 in Supreme Court of Victoria , Australia probate jurisdiction on 7/10/ 2014 as per exhibit P 12. Later by filing petition in CP1 bar 2016 and CP2 bar 2016 before Hon'ble High Court of Karnataka which is reported in 2016 SCC online Karnataka 3997 and AIR Karnataka page 662 between Parameshwar Subramani versus Nil letter of administration was also obtained by the plaintiff number two in respect of the said will executed by Mrs Dorothy Shedden. Though this order is not produced at the time of evidence and it is not marked and it is produced along with the written arguments, since it is reported judgement this court has to take judicial notice of the same. Since that is the order of 38 Honourable High Court of Karnataka it is binding on this court. Therefore it is clear that the court has to consider the said probate granted by Honourable High Court of even though the defendants are not made parties to the said petition. It is the contention of that defendants 2 to five that during the pendency of the suit the plaintiffs have obtained letter of administration on the probate granted by Supreme Court Victoria in respect of the said will without making these defendants as party before Honourable High Court of Karnataka and hence the said order is not binding on the defendants. However unless the defendants seek for setting aside the said order of Honourable High Court of Karnataka the said order is binding on this court. The remedy now available to the defendants is to approach a Hon'ble High Court of Karnataka for setting aside the same, until then the order of Honourable High Court of Karnataka in CP1/16 and CP. 2/16 is binding on this court. Now the defendants have produced document to show that they have applied forRevocation of the said probate granted to the plaintiffs But so far that is not revoked. Therefore contentions of defendant 2 to 5 the said probate order is not binding on them 39 cannot be accepted. Therefore it is clear that the plaintiff number two is the beneficiary under the said will executed by Mrs Dorothy Shedden and hence he has got half right over the suit B schedule property since DM Shedden has bequeathed her half share in favour of plaintiff number two. Section 57 of Indian succession act says as follows:-
Sec. 57. Application of certain provisions of part to a class of Wills made by Hindus, etc: The provisions of this part which are set out in Schedule-III shall, subject to the restrictions and modifications specified therein, apply:-
(a) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 19870 within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madra and Bombay; and
(b) to all such Wills and codicils made outside those territories and limits so far as relates to immovable property situated within those territories or limits, and
(c) to all Wills and codicils made by any Hindu, Buddhist, Sikh and Jaina on or after the first day of January, 1927 to which those provisions are not applied by clauses (a) and (b).40
43. As per the above said section 57 it is clear that all such wills and Codicils made outside those territories and limits so far as it relates to immovable property situated within those territories or limits probate can be obtained.
44. As per section 228 of Indian succession act letter of administration was granted by honourable High Court of Karnataka also in respect of the said will. As per section 273 of Indian succession act probate of letter of administration shall have the effect over all the property and estate of movable or immovable of the diseased throughout the state in which the same is granted and shall be conclusive as to the representative title against all debtors of the diseased and all persons delivering up such property to the person to whom such a probate or letters of administration have been granted by the High Court.
Section 275 of Indian succession act says as follows:-
Conclusiveness of application for probate or administration if properly made and verified:- The application for probate or letters of administration, if 41 made and verified in the manner hereinafter provided, shall be conclusive for the purpose of authorizing the grant of probate or administration; and no such grant shall be impeached by reason only that the testator or intestate had no fixed place of abode or no property within the district at the time of his death, unless by a proceeding to revoke the grant if obtained by a fraud upon the court.
45. The advocate for defendant Nos.2 to 5 has relied the judgment of Honorable Supreme Court between Chiranjilal Shrilal Goenka V/s Jasjit Singh and others, in the said judgment Honorable Supreme Court has held as follows:-
Succession Act, 1925, Sections 211(1), 217, 222, 223, 234, 227, 273, 276, 280, 284, 295 and 299. Grant of probate. Court of probate has exclusive jurisdiction. Civil court in original side or arbitrator, even on consent of parties, has no jurisdiction to adjudicate upon proof of validity of will propounded by the executor. Unless grant of probate is revoked, it operates as a judgment in rem. It conclusively establishes appointment of executor and valid execution of will. Probate court does not decided any question of title, or the existence of the property itself. While executor expressly nominated in the will, being legal representative of the deceased testator, 42 entitled to grant of probate, heirs are not entitled to it.
46. The advocate for defendant No.2 has relied another judgment of Honorable High Court of Karnataka between Smt. Severine D'Souza and another V/s Felix Ambrose D'Souza in that judgment Honorable High Court of Karnataka has held as follows:-
Miscellaneous first appeal arising out of an order passed by the probate court is referred to the full bench for determination of the questions formulated by the Division Bench, vide order dtd.29th October, 2002. The single judge before whom the Miscellaneous First Appeal came up for hearing initially noticed a conflict between the law declared by the Supreme Court in "Ishwardeo Narayana Singh.
47. The advocate for defendants had also relied another judgment of Honorable Supreme Court between R. Viswanathan and Gajambal Ammal and another V/s Rukn-Ul- Mulk Syed Abdul Wajid Since deceased and others.
48. The advocate for defendant No.2 has relied another judgment of honorable Supreme Court reported in (2001) 5 Supreme Court Cases 265 between International Woollen Mills 43 V/s Standard Wool Ltd., in the said judgment honorable Supreme Court has held as follows:-
A. Civil Procedure Code- Foreign decree and judgment if one merits. Exparte decree generally is not. That all documents and papers had been endorsed with the statement of claim does not still make the decree on merits. Held, the decree and judgment granted by foreign court can be said to be on merits only if such court has considered he case on merits by looking into the evidence led by plaintiff and documents proved before it, as per its rules. Where an exparte judgment and decree (for recovery of price of goods and interest), awarded by an English court against appellants, did not indicate whether any document has been looked into or merits considered at all and where appellants had alleged in reply of lawyers notice that goods receive were of inferior quality and not as per contract, held court erred in dismissing the appeared revision petition. Words and phrases on merits.
B. Civil Procedure Code- Burden of proving that foreign judgment is not on merits. Held lies on party so alleging, but in order to prove the point such party would not be expected to do the impossible by leading evidence as to the state of mind of judge who passed the decreee. Party would have to establish facts such as that the decree itself did not show that it was on merits; what the rule of the court concerned were; the existence or otherwise of material before the court when the decree was passed and the 44 manner in which it was passed. Evidence Act, 1872,. Burden of proof. Foreign decree, whether on merits.
C. Civil Procedure Code- Foreign decree on merits. Held is completely different from a decree passed regularly, in respect of which all formalities, have been complied with. An exprate decree granted without considering a case on merits may be a decree passed regularly, if permissible under the rules of the court which passed it, and so would be perfectly valid unless set aside by a court of appeal.
49. However in view of the above said discussion it is clear that as per section 275 of Indian Succession Act the probate and leter of administration which is already issued particularly by Hon'ble High Court is conclusive unless it is revoked. Therefore the above said decisions relied by the advocate for defendants are not applicable to the case on hand.
50. Therefore it is clear that as per the above said section 275 unless by proceedings the probate is revoked even if the probate is obtained by fraud upon the court, the said order of probate or administration is conclusive. Therefore it is clear that as per the above said section 275 unless by proceedings to revoke the grant if obtained by fraud upon the court, the said order of probate or administration is conclusive on this court. 45 Therefore I feel that on the ground that the said sale deed was Obtained by defendants number 2 to 5 from defendant number one Who is the power of attorney holder for Dorothy Shedden after the death of Mrs Dorothy Shedden is not binding on the share of plaintiff number two who is the beneficiary of the will executed by Mrs Dorothy Shedden in respect of her half share in the suit B schedule property. Therefore I feel that plaintiff number two is entitled for the declaratory relief sought .
51. It is the contention of defendants No.2 to 5 that suit is barred by law of limitation. But according to the plaintiff No.2 after defendant No.1 filed position statement in the suit SCI 2013 00538 on the file of Honorable Supreme Court of Victoria Melbourne, that plaintiffs came to know about the sale of the suit property and therefore they have filed this suit before this court and same is within the period of limitation. In support of the contention of the plaintiff No.2 that is PW1 has produced the said position statement at Ex.P7 , it is clear that the defendant No.1 had filed the said statement in the Supreme Court of Victoria on 11/06/2013 mentioning that she had sold the property. Therefore it is clear that from the date of knowledge of 46 the sale of the property the plaintiff number two has filed this suit and same is within the period of limitation.
52. The advocate for defendant No.2 has relied the judgment of Honorable High Court of Karnataka between Chandrashekara V/s Narayanappa and others.
53. The advocate for the defendant No.2 to 5 has relied another judgment of honorable Supreme Court between Jagdish Prasad Patil V/s Shivnath and others in the said judgment Honorable Supreme Court has held as follows:-
Suit for declaration of title over immovable property. Burden of proof. Plaintiff required to discharge decree where independent of case of defendant. Passing the declaratory decree where plaintiff did not lead evidence to establish his title, reiterated, impermissible. Khatha entries are not proof of title but revenue purpose . Even if few sentences in written statement advantageous to plaintiff, such adduce contra evidence where defendant led evidence. Property law. Ownership and title.
54. The advocate for defendant has also relied another judgment of Honorable Supreme Court between Church of Christ charitable Trust and Education Charitable Society V/s 47 Ponniamman Education Trust. The principle laid down in the above said decision is taken into consideration.
55. However the said principles laid down in the above said judgments are not applicable to the case on hand, since the plaintiff No.2 has proved that the defendant 2 to 5 have purchased the suit property after the death of the executor of power-of-attorney in favour of defendant No.1 and plaintiff No.2 has also proved that he has obtained probate in the honorable Supreme Court of Australia and also obtained probate of administration from the honorable High Court of Karnataka in respect of 50% of share of Dorothy Mavis Shedden as per the Will in his favour and the said order is not revoked so for. Hence I feel that plaintiffs are entitled for the relief sought for.
56. As per the evidence of DW.1 it is clear that DW.1 has also claiming that he has purchased the suit property as per GPA holder dtd.19.05.1983 executed Mrs. Dorothy Mavis Shedden and plaintiff is claiming the relief that the said POA is ceased after the of Mrs. Dorothy Mavis Shedden on 29.07.2004 and therefore the said sale deed executed by 48 defendant No.2 infavur of defendant Nos.2 to 5 is null and void. Therefore when both are claiming the relief basing on GPA and defendant are admitting the execution of GPA and the defendant who are the purchaser of the schedule property have not produced, the said GPA before the court, the court can consider the relief of the plaintiff even though the said GPA is not produced before the court and both are admitting the said document.
57. Hence, in view of above said reasons I feel that plaintiff No.2 has proved that he is the owner of half share of the 'B' schedule property and also proved that the sale deed dtd.20.04.2006 executed by 1st defendant in favor of defendant No.2 to 5 is null and void in respect of his share and proved that he is entitled for half share of 'B' schedule property.. Hence I answer Issue Nos.2 and 3 and Additional Issue No.3 dtd.24.09.2016 partly in the positive.
58. In view of the above said reasons it is clear that the GPA dtd.09.05.1983 executed by Mrs. Dorothy Mavis Shedden which was granted to the 1 st defendant became ineffective from 29.07.2004. Hence I answer re casted Issue No.1 in the 49 positive.
59. In view of the above said reasons it is clear that the plaintiffs have proved the execution of will by producing probate obtained from Supreme Court of Austrilia and probate of administration obtained fro Honourable High court of Karnataka and same has not been revoked so far. Hence I feel that the 2nd plaintiff has proved the recasted Issue Nos.6 and 7 and additional Issue Nos.6 and 7 in the positive. Hence, I answer recsted Issue No.6 and 7 and additional Issue No. 6 and 7 in the Positive.
60. In view of the above said reasons it is clear that the defendant No.2 to 5 have failed to prove that the said GPA executed by Mrs. Dorothy Mavis Shedden dtd.19.05.1983 is irrevocable and valid even after the death of its executor. Hence I answer Recasted Additional Issue No.1 dtd.05.06.2018 in the negative.
61. Since this court has clearly held that this suit is not barred by law of limitations, I answer Additional issue No.5 in the Negative.
50
62. Even though defendants have contended that this court has no jurisdiction to try this suit and bad for non joinder of necessary parties, they have not given supporting evidence regarding the same . Therefore I answer Issue No.4 dtd.08.09.2015 in the positive and Issue No.5 dtd.08.09.2015 in the Negative.
63. Even though the defendants have contended that court fee paid is insufficient the plaintiff at the time of filing of this suit has filed valuation slip and paid court fee of Rs.3,31,950/- as per Court fee and suit valuation Act,by valuing the suit of Rs.2,49,60,000/-. Hence I answer I feel that court fee paid is sufficient. Hence I answer Issue No.8 dtd.08.09.2015 in the positive.
64. Therefore the contention of the defendants that that there is no cause of action for filing of this suit cannot be accepted. Hence I answer Additional issue No.4 dtd.11.04.2018 in the Negative.
65. In view of the above said reasons the sale deed executed by the defendant No.1 infavour of the defendant Nos. 51 2 to 5 dtd.20.04.2004 is liable to be canceled to the extent of share of plaintiff No.2. Hence I answer Additional Issue No.2 dtd.05.06.2018 in the partly in the positive.
66. The plaintiffs have also sought for mense profit and they are entitled for the same. Since defendant No.2 to 5 are in the possession of share of suit property of plaintiff No.2 without right, same has to be calculated at the time of final decree proceedings and hence I answer issue No.9 dtd.08.09.2015 partly in the positive and also stating that the mesne profits has to be calculated at the time of final decree proceedings. In view of the above said reasons, I feel plaintiff No.2 is entitled for cancellation of sale deed to the extent of his share and hence, I answer recasted additional Issue No.2 partly in the positive.
67. Point No.6:- In view of above said reasons, I pass the following:-
ORDER The suit of the Plaintiff No.2 is decreed with costs and it is declared that POA dtd.19.05.1983 executed Mrs. Dorothy Mavis Shedden and granted to Crystal Mayes 52 @ Ellen Crystal Rosemary Albert ie., first defendant ceased and became ineffective on the death of Mrs. Dorothy Mavis Shedden. It is also declalred that plaintiff No.2 is absolute onwer of the half share of suit schedule 'B' property.
Consequently, it is declared that the absolute sale deed dtd.20.04.2006 executed infavour of defendants 2 to 5 by defendant No.1 is null and void and not binding on the plaintiff No.2 to th extent of half share in the suit 'B' schedule property.
It is dicrected to the defendants No.2 to 5 to deliver up the sale deed dtd.20.04.2006 to the jurisdictional Sub- Registrar for cancellation of the sale deed in respect of half share of the plaintiff No.2 and it is directed to the defendants 2 to 5 hand over vacant possession of half share of the schedule 'B' property to the plaintiff No.2.
[Dictated to the Stenographer on 02.12.2019 thereafterwards, the same was transcribed and typed by the Stenographer and thereafterwards correct, signed and pronounced by me on 2nd day of December,2019].
[ B.S. Bharathi ], XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bengaluru.
53ANNEXURE
1. List of witnesses examined for the plaintiffs:-
P.W.1 : Adrian Maxwell Kenneth Shedden Jnr.,
2. List of documents marked:-
Ex.P1 Copy of power of attorney dated: 4.2.2014 Ex.P2 Certified copy of Sale deed datd: 24.3.1971 Ex.P3 Form No.16 Ex.P4 Death certiicate of plaitniff'sgrand uncle George Reginald Upshon Ex.P5 Copy of Probate dt: 9.08.2012 Ex.P6 Possessio statement dt: 10.05.2013 Ex.P7 Statement dated: 11.06.2013 Ex.P8 GeneralForm of order dt: 24.09.2013 Ex.P9 Declaration dt: 19.08.2013 of Crystal Rosemary Albert Ex.P10 Copy of the sale deed dated: 20.04.2006 Ex.P11and Probates granted by Supreme Court of Victoria 12 Probe Jurisdiction in respect of the Wills of late eorge Reginald Upshon and Late Dorothy Mavis Shedden Ex.P13 Death certificate of late Dorothy Mavis Shedden Ex.P14 Power of Attorney and revocation of the Power of of Attorney executed on 3.3.2017 by Arthur R.W Towt and others Exp.16 and Two death certificates 17
3. List of witnesses examined for the defendants:-
DW.1: Sri. Mohammad Azeez
4. List of documents marked for the defendant:-
Ex.D.1 Certified copy of RFA 30/2003
Ex.D.2 Certified copy of RFA 1240/2003
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Ex.D.3 Certified copy of RFA 1016/2008
Ex.D.4 Bank statement of Emarald Agencies for the period
1.4.2006 to 30.4.2006
Ex.D. 5 Bank statement of Emarald Agencies for the period
1.1.2009 to 20.4.2006
Ex.D. 6 Tax paid receipt
Ex.D. 7 Encumbrance certificate
Ex.D. 8 Certified copy of Agreement of sale dated:
15.4.1984
Ex.D. 9 Certified copy of agreement of sale dated:
17.6.1984
Ex.D. 10 Certified copy of agreement of sale dtd: 2.1.1982 Ex.D. 11 Certified copy of agreement of sale dt: 7.2.1995 Ex.D. 12 Certified copy of plaint in OS.No.4907/1995 Ex.D.13 Certified copy of written statement in OS.No.4907/1995 Ex.D. 14 Certified copy of order sheet in O.S.No.4907/1995 Ex.D. 15 Certified copy of judgment and dcree inO.s.No.4907/1995 Ex.D.16 Certified copy of Judgment in RFA No. 2431/2007 Ex.D.17 Certified copy of order sheet inRFA No.708/2000 Ex.D. 18 Certified copy of order sheet in RFA No.1240/2003 Ex.D. 19 Intimation Notice dated: 19.1.2005 issued by BBMP Ex.D. 20 Paper Publication in Decccan Herald News paper Ex.D. 21 Certified copy of petition in SLP (C) No.1834/2010 Ex.D. 22 Certified copy of objection in SLP (C) No.1834/2010 Ex.D. 23 Presentation Memo for deposit of Rs. 5,50,000/- in RFA No.708/2000 Ex.D. 24 Certified copy of order sheet in OS.No.6854/1995 Ex.D. 25 Office copy of letter dated: 31.7.2013.
[ B.S. Bharathi ], XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bengaluru.
55