Bangalore District Court
Smt. T. Lakshmamma vs Smt. Padma on 6 August, 2022
1 O.S.No.25486/2014
Govt. Of Karnataka
C.R.P.67] TITLE SHEET FOR JUDGMENTS IN SUITS
Form No.9(Civil) AT MAYOHALL UNIT, (CCH-29)
T title sheet for
Judgment in suits BANGALORE.
( R.P.91)
Present: Sri. K.M. Rajashekar, B.Sc., LL.M.,
Dated: This the 6th day of August 2022
Original suit No.25486/2014
Plaintiffs:- 1. Smt. T. Lakshmamma,
W/o Late K. Gopalakrishnaiah,
Aged about 60 years,
Residing in a portion of the
house bearing No.25,
9th Main Road,
Raghavendra Block, Srinagar,
Bangalore-560 050.
2. Smt. Latha,
D/o Late K. Gopalakrishnaiah,
Aged about 33 years,
R/at No.466, IV East Lane,
ITI Colony Quarters,
Dooravaninagar,
Bangalore East Taluk.
(By Pleader : Sri. Prakash T. Hebbar)
V/s
Defendants:- 1. Smt. Padma,
D/o Late K. Gopalakrishnaiah,
(W/o shri Y.V. Venkatachalaiah),
Aged about 30 years,
Block Health Education Officer,
2 O.S.No.25486/2014
Near Nadapriya Primary School,
Andanaiah Extension,
Behind Government Hospital,
Kunigal.
2. Shri. Sudarshan,
S/o Late K. Gopalakrishnaiah,
Aged about 35 years,
Residing in a portion of the
house bearing No.25,
9th Main Road,
Raghavendra Block,
Srinagar,
Bangalore-560 050.
3. Shri. Y.V. Venkatachalaiah,
S/o Late Venkataramaiah,
Aged about 45 years,
Block Health Education Officer,
Government Hospital,
Amruthur,
Kunigal Taluk.
(Pleader by: Sri. H.M. Kishor Kumar Adv., for D.1 & D.3,
D.2 Ex-parte)
Date of Institution of the suit 20.3.2014
Nature of the (Suit or pro-note, suit for
declaration and possession, suit for Declaration &
injunction, etc.) Partition
Date of the commencement of 18.10.2016
recording of the Evidence
Date on which the Judgment was 6.8.2022
pronounced
Year/s Month/s Days
Total duration 08 04 16
3 O.S.No.25486/2014
JUDGMENT
This is a suit filed by the Plaintiffs against the Defendants praying to declare the registered instrument executed on 13.2.2006 by and between Sri. K.Gopalakrishnaiah S/o Late G. Krishnaiah in favour of the 3rd Defendant is null and void for want of passing of consideration amount and obtained by practicing fraud and misrepresentation and no right, title or interest ever passed over to the 3rd Defendant in respect of the Suit Property and for partition of the Suit Schedule Property by metes and bounds and to grant 1/4th share each to the Plaintiffs in the Schedule Property and put them in separate possession of their respective shares and for other reliefs.
2. The brief facts of the case of the Plaintiff are as follows:-
The Plaintiffs and Defendants are the family members of Late K. Gopalakrishnaiah who worked as a Driver in KSRTC in Bangalore and retired from his service 4 O.S.No.25486/2014 with unblemished service records. Sri. K.Gopalakrishnaiah with his savings and taking loans had acquired the Suit Property with the constructed house therein under a registered Sale Deed dtd: 28.9.1978. Sri. K. Gopalakrishnaiah lived in the said house along with his mother and his wife and children and the only son Sudarshan i.e., the Defendant No.2 has absconded and the whereabouts of his only son are not known to the family. Sri. K. Gopalakrishnaiah has let out one portion in the ground floor of the Suit Property on rent and other portion which was a shop was let out and the rental income derived out of the premises on the ground floor was being collected by him. Due to the abscondance of his only son Sri. K. Gopalakrishnaiah was in depression and was not mentally sound mind. The husband of the 1 st Defendant i.e., the 3rd Defendant by name Y.V.Venkatachalaiah in collusion with the Defendant No.1 took the advantage of his mental illness and innocence of his wife Smt. T. Lakshmma, managed to get a registered document executed by the said Sri. K. Gopalakrishnaiah 5 O.S.No.25486/2014 in the name of 1st Defendant's husband who is the 3 rd Defendant in respect of the Suit Property. Sri. K. Gopalakrishnaiah did not executed the said registered instrument in the name of 3rd Defendant and he did not have any pressing or demanding liability to meet urgently out of the sale proceeds of the Suit Property. The 3 rd Defendant managed the entire affairs of the sale transaction etc., in utmost secrecy without letting the said matters known to the family of the Plaintiffs till the death of Sri. K. Gopalakrishnaiah on 28.5.2012 and no consideration has passed under the aforesaid registered instrument by the 3rd Defendant to Sri. K. Gopalakrishnaiah. The 3rd Defendant has forged the signature of the 1st Plaintiff as 1st witness to the said registered instrument. Though the said Sale Deed dtd:13.2.2006 was got executed by misrepresentation when the alleged executor thereof was not having balanced mind in favour of the 3rd Defendant, has a recital showing that possession of the Suit Property was allegedly delivered on the date of execution of the Sale 6 O.S.No.25486/2014 Deed, till today, the possession over the first floor continues to be with Smt. T. Lakshmamma 1 st Plaintiff and Smt. Lakshmamma and the rental income from one portion of the ground floor premises which was leased was secretly collected by the 3 rd Defendant. The 3rd Defendant clandestinely let out one portion of the ground floor premises on lease and collected the lease amount from the said occupants in a sum of Rs.8,00,000/-, the 3 rd Defendant continued to pay out from his pocket a sum of Rs.5,000/- per month telling the Plaintiffs that the said rent is collected by him from the tenant occupying the portion of the ground floor premises. Therefore, the fraudulent transfer does not deviate the natural succession under the Hindu Succession Act in as much as the Suit Schedule Property was the self-acquisition of the said K. Golapalakrishnaiah who died intestate leaving behind the Plaintiffs and Defendant No.1 and 2 as the sole successors and as such the Plaintiffs and the Defendant No.1 and 2 are entitled to equal share in the Suit Schedule Property. The 3rd Defendant in collusion with his 7 O.S.No.25486/2014 wife 1st Defendant is threatening the Plaintiffs to vacate the first floor portion of the Schedule Property which is in their exclusive occupation as legal heirs of deceased K. Gopalakrishnaiah. Hence, prayed to decree the suit.
3. In pursuance of the suit summons, the Defendant No.1 & 3 have appeared through their Counsel and filed their separate written statements. The Defendant No.2 remained absence, hence, he was placed ex-aprte.
The Defendant No.1 & 3 in their written statement specifically denied the plaint averments and contended that the 3rd Defendant is the absolute owner of the Schedule Property which was purchased by him from its owner K. Gopalakrishnaiah i.e., husband of Plaintiff No.1 and father of Plaintiff No.2 and Defendant No.1 and 2 for valuable sale consideration and the khatha of the said property has been transferred to the name of the Defendant No.3 and he is paying taxes regularly to the concerned authorities. The said property consists of ground and first floor. In the ground floor, there is a dwelling house and the same has been mortgaged and 8 O.S.No.25486/2014 the shop portion in the ground and the first floor has been let out in favour of Bangalore Motor Driving School and also there is a dwelling house on the rear portion of the first floor. The 3rd Defendant married to the daughter of K.Gopalakrishnaiah and Lakshmamma. Now, the 3 rd Defendant and his wife and daughter are residing at Kunigal as the Defendant No.3 is working in Health Department at Amruthur, Kunigal Taluk, Tumkur District. At the time of purchase of the Suit Property the 1 st Plaintiff, her husband and her mother-in-law by name Lakshmamma, were residing in the rear portion of the first floor of the said property and they requested the 3 rd Defendant to permit them to stay in the same portion for a period of 3 years. Considering the relationship the 3 rd Defendant agreed for their stay. After lapse of 3 years i.e., in the first week of November 2009, the 3 rd Defendant personally approached the 1st Plaintiff and her husband and requested and demanded them to deliver the property which is in their occupation for the use and occupation of the Defendant No.3 and his family 9 O.S.No.25486/2014 members. At that time, the mother-in-law of the 1 st Plaintiff was aged 95 years and she was bedridden and therefore, they have requested 3rd Defendant for further time to deliver the said portion. In the meantime, the husband of the 1st Plaintiff passed away and also the mother-in-law of the 1st Plaintiff also passed away. After the death of Lakshmamma, the licence of the 1 st Plaintiff was automatically come to an end and the 1 st Plaintiff has to vacate the said portion. During the first week of April, the 1st Plaintiff has illegally inducted the 2 nd Plaintiff, who is residing along with her family members at ITI Colony, K.R.Puram, Bangalore. The occupation of the 1 st Plaintiff in the said portion is permissive one without paying any rents/mortgage amount in view of the close relationship between the 1st Plaintiff and the 3rd Defendant. Thus the 1st Plaintiff is a licensee under the Defendant No.3 and after the death of Lakshmamma the Plaintiffs are not entitled to use the said premises for dwelling purposes. Now, the Defendant No.3 is entitled for possession of the premises which is in use and occupation of the Plaintiffs. 10 O.S.No.25486/2014 In the last week of March 2014, the 3 rd Defendant and his wife i.e., 1st Defendant personally requested the 1st Plaintiff to deliver the portion under her occupation as the same is bonafide required by the Defendant No.3 and his family members. But, instead of delivering the said portion the 1st Plaintiff threatened these Defendants with dire consequences. Thereafter, the 3 rd Defendant issued legal notice dtd: 9.4.2014 to the Plaintiffs which is served on them, but they have neither replied nor vacated the Suit Property. Hence, prayed to dismiss the suit.
4. Based on the aforesaid pleadings this Court has framed the following issues:-
1) Whether the Plaintiffs prove that they and the Defendant Nos.1 & 2 as LR's of Late K. Gopalakrishnaiah are entitled to equal share in the Suit Schedule Property?
2) Whether the Plaintiffs prove that the 3rd Defendant got the Sale Deed in respect of the Suit Schedule Property on 13.2.2006 from the said 11 O.S.No.25486/2014 K. Gopalakrishnaiah by way of fraudulent method?
3) Whether the Plaintiff is entitled to the relief as sought?
4) What order or decree?
5. To prove the case of the Plaintiffs, the Plaintiff No.2 got examined as P.W.1 and one more witness as PW.2 and got marked documents as per Ex.P.1 to Ex.P.5. The Defendant No.3 got examined as DW.1 and one more witness as DW.2 and got marked Ex.D.1 to Ex.D.35 documents and closed his side.
6. Heard both sides. The written arguments filed by the Plaintiffs is taken into consideration.
7. My answers to the above issues are as follows:-
Issue No.1 : In the Negative.
Issue No.2 : In the Negative.
Issue No.3 : In the Negative.
Issue No.4 : As per final orders for the following:12 O.S.No.25486/2014
REASONS
8. Issues No.1 & 2:- These issues are inter-related, hence, answered in common, in order to avoid repetition of facts.
9. The nutshell of the Plaintiffs' case is that the Plaintiffs and Defendant 1 and 2 are wife and the children of Sri. K. Gopalakrishnaiah had acquired the Suit Property under a registered Sale Deed dtd:
28.9.1978. Due to the abscond of his only son, Sri. K. Gopalakrishnaiah was in depression and was not mentally sound mind. The husband of the 1st Defendant Venkatachalaiah in collusion with the Defendant No.1 took the advantage of his mental illness and innocence of his wife T. Lakshmamma, managed to get a registered document in favor of 3rd Defendant from Sri. K. Gopalakrishnaiah and no consideration has passed under the aforesaid registered instrument. The 3rd Defendant has forged the signature of the 1 st Plaintiff as 1st witness to the said registered instrument. Though the said Sale 13 O.S.No.25486/2014 Deed dtd: 13.2.2006 was got executed by misrepresentation when the alleged executor thereof was not having balanced mind in favour of the 3 rd Defendant, has a recital showing that possession of the Suit Property was allegedly delivered on the date of execution of the Sale Deed, till today, the possession over the first floor continues to be with Smt. T. Lakshmamma 1 st Plaintiff and Smt. Lakshmamma and the rental income from one portion of the ground floor premises which was leased was secretly collected by the 3 rd Defendant. The said K. Golapalakrishnaiah who died intestate leaving behind the Plaintiffs and Defendant No.1 and 2 as the sole successors and as such the Plaintiffs and the Defendant No.1 and 2 are entitled to equal share in the Suit Schedule Property. Hence, prayed to decree the suit.
10. The Defendant No.1 & 3 contended that the 3 rd Defendant is the absolute owner of the Schedule Property which was purchased by him from its owner Sri. K. Gopalakrishnaiah for valuable sale consideration. The 3 rd Defendant married to the daughter of Sri. K. 14 O.S.No.25486/2014 Gopalakrishnaiah and Smt. Lakshmamma. At the time of purchase of the Suit Property the 1st Plaintiff, her husband and her mother-in-law by name Lakshmamma, were residing in the rear portion of the first floor of the said property and they requested the 3rd Defendant to permit them to stay in the same portion for a period of 3 years. Considering the relationship the 3rd Defendant agreed for their stay. When demanded them to deliver the property, since the mother-in-law of the 1st Plaintiff was aged 95 years and she was bedridden and therefore, they have requested 3rd Defendant for further time. In the meantime, the husband of the 1st Plaintiff passed away and also the mother-in-law of the 1st Plaintiff also passed away. The occupation of the 1 st Plaintiff in the said portion is permissive one without paying any rents. Now, the Defendant No.3 is entitled for possession of the premises which is in use and occupation of the Plaintiffs. Hence, prayed to dismiss the suit.
11. Upon going through the materials available on record, it indicates that the relationship between the 15 O.S.No.25486/2014 parties is not in dispute. One Sri. Gopalakrishnaiah and Smt. Lakshmamma i.e., the 1 st Plaintiff herein are husband wife who had children by name Latha i.e., Plaintiff No.2, Padma -Defendant No.1 and Sundaresh - Defendant No.2. The Defendant No.3 is the son-in-law of said spouse and husband of Defendant No.1. It is significant here to note that, mother and one of the sister has filed this suit against the son-in-law for declaration to declare that the Sale Deed executed by Sri.Gopalakrishnaiah as null and void and for partition. Even though, said Sri. Gopalakrishnaiah left behind the Defendant No.2 as his son, but the Defendant No.2 did not appeared before the Court to contest the case on merits. Rather, he was placed ex-parte.
12. Upon perusal of the materials on record, it indicates that as mentioned above, Plaintiff approached the Court for cancellation of the Sale Deed executed by Sri.Gopalakrishnaiah and for partition. The admitted facts also indicates that the Suit Property was purchased by said Sri. Gopalakrishnaiah under Ex.D.2. In turn, he sold it 16 O.S.No.25486/2014 to Defendant No.3 under Ex.D.1. Now, Ex.D.1 is sought to be cancelled. According to the Plaintiff i.e., her husband Late Gopalakrishnaiah was under depression and the said depression had a serious bearing on his thinking capacity as well as his mind. It is also specific contention of the Plaintiff that the Sale Deed got executed by misrepresentation when the executor was not having balanced mind, got Sale Deed dtd: 13.2.2006 registered by Defendant No.3 by misrepresentation and suppression of facts when the Gopalakrishnaiah was not in balanced mind, no monetary consideration is passed under the aforesaid instrument. The Sale Deed is fraudulently obtained without consideration is ab-initio and void.
13. Upon perusal of materials on record, the main grounds to seek for cancellation of registered instrument is, first one is the executor has no balanced state of mind, Sale Deed is got executed, registered by misrepresentation and no consideration is passed. On the other hand, 3rd Defendant who is the contesting Defendant herein specifically contended that he is the 17 O.S.No.25486/2014 absolute owner of the Schedule Property which was purchased by him from its owner K. Gopalakrishnaiah i.e., husband of Plaintiff No.1 and father of Plaintiff No.2 and Defendant No.1 and 2 for valuable sale consideration and the khatha of the said property has been transferred to his name and he is paying taxes regularly to the concerned authorities. The said property consists of ground and first floor. In the ground floor, there is a dwelling house and the same has been mortgaged and the shop portion in the ground and the first floor has been let out in favour of Bangalore Motor Driving School and also there is a dwelling house on the rear portion of the first floor. The 3rd Defendant married to the daughter of K.Gopalakrishnaiah and Lakshmamma. Now, the 3 rd Defendant and his wife and daughter are residing at Kunigal as the Defendant No.3 is working in Health Department at Amruthur, Kunigal Taluk, Tumkur District. At the time of purchase of the Suit Property the 1 st Plaintiff, her husband and her mother-in-law by name Lakshmamma, were residing in the rear portion of the 18 O.S.No.25486/2014 first floor of the said property and they requested the 3 rd Defendant to permit them to stay in the same portion for a period of 3 years. Considering the relationship the 3 rd Defendant agreed for their stay. After lapse of 3 years i.e., in the first week of November 2009, the 3 rd Defendant personally approached the 1st Plaintiff and her husband and requested and demanded them to deliver the property which is in their occupation for the use and occupation of the Defendant No.3 and his family members. At that time, the mother-in-law of the 1 st Plaintiff was aged 95 years and she was bedridden and therefore, they have requested 3rd Defendant for further time to deliver the said portion. In the meantime, the husband of the 1st Plaintiff passed away and also the mother-in-law of the 1st Plaintiff also passed away. After the death of Lakshmamma, the licence of the 1 st Plaintiff was automatically come to an end and the 1 st Plaintiff has to vacate the said portion. During the first week of April, the 1st Plaintiff has illegally inducted the 2 nd Plaintiff, who is residing along with her family members at ITI Colony, 19 O.S.No.25486/2014 K.R.Puram, Bangalore. The occupation of the 1 st Plaintiff in the said portion is permissive one without paying any rents/mortgage amount in view of the close relationship between the 1st Plaintiff and the 3rd Defendant. Thus the 1st Plaintiff is a licensee under the Defendant No.3 and after the death of Lakshmamma the Plaintiffs are not entitled to use the said premises for dwelling purposes. Now, the Defendant No.3 is entitled for possession of the premises which is in use and occupation of the Plaintiffs. In the last week of March 2014, the 3 rd Defendant and his wife i.e., 1st Defendant personally requested the 1st Plaintiff to deliver the portion under her occupation as the same is bonafide required by the Defendant No.3 and his family members. But, instead of delivering the said portion the 1st Plaintiff threatened these Defendants with dire consequences.
14. In support of his claim, Plaintiff No.2 got examined as PW.1 and Plaintiff No.1 has also entered the witness box as PW.2. Upon perusal of the cross- examination, it indicates that PW.1 in her cross- 20 O.S.No.25486/2014 examination categorically admitted the fact that the Suit Property was the self-acquired property of Sri. Gopalakrishnaiah, her only grouse is that, since the Defendant No.3 being the son-in-law has got it registered in his name, she approached this Court. Undisputedly, Sri. Gopalakrishnaiah himself purchased the Suit Property under Ex.D.2 and he himself put up construction over the Suit Schedule Property. During the course of cross- examination, PW.1 has categorically admitted the fact that:
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15. On documentary side, Plaintiffs got placed only five documents Ex.P.1 to Ex.P.5 which are the certified copy of Sale Deed which is challenged now. However, the original of Ex.P.1 is got marked by the Defendant as Ex.D.1, one Khatha Extract, A.R.Extract, Tax Paid Receipt and the Sale Deed under which Sri. Gopalakrishnaiah purchased the Suit Property from Sri. Nagaraj which is 24 O.S.No.25486/2014 also got marked by the Defendant as per Ex.D.2, one Vakalath and one Bank Statement got placed by the Plaintiff in support of their contention. Absolutely, not even a single scrap of paper produced by the Plaintiff to establish that the executor Sri. Gopalakrishnaiah had not balanced mind. Added to that, no document or oral evidence got placed by the Plaintiff to establish the suppression of fact and misrepresentation by the Defendant No.3 in getting the Ex.D.1 executed in his favour. However, to establish that no consideration is passed under Ex.D.1 to Gopalakrishnaiah, Plaintiff are mainly relying upon the cross-examination of DW.1. Even though, much hue and cry is made by the Plaintiff that Defendant No.3 being the Government employee had no source of income to arrange such a huge amount of Rs.9 lakhs and add to pay under Ex.D.1, but the Defendant got examined one H.Gopalakrishnaiah his friend and claimed that DW.2 has lend money to financially assist under purchase of Ex.D.1. Apart from that, interestingly PW.2 who is none other than Plaintiff No.1 herein in the case 25 O.S.No.25486/2014 gave clear go-bye to her claim in the plaint. During the cross-examination PW.2 categorically admitted that since 2014 Defendant No.3 is receiving rent. Apart from that, it is not disputed by the Plaintiff No.1 that when the Bank made an attempt to auction the Suit Property for non- payment of loan the Defendant No.3 himself paid the said loan and cleared the dues. Interestingly, Plaintiff No.1 is also one of the signatory to Ex.D.1 Sale Deed which is challenged by her now. However, she denies execution of her signature, but as mentioned above, even though Plaintiff claimed that Sri. Gopalakrishnaiah was not in a sound state of mind to execute any instrument. But, not even a single scrap of paper got placed by the Plaintiff to support that the executor is not in balanced mental state. But, even according to the Plaintiff till 2007 said Sri.Gopalakrishnaiah was in a healthy state of mind and he himself was looking after his ailing mother. It is to be noted here that Ex.D.1 Sale Deed was executed in the year 2006 i.e., on 13.2.2006. According to the Plaintiff, said Gopalakrishnaiah passed away in the year 2012. 26 O.S.No.25486/2014 However, the Defendant claimed that till 2014 Gopalakrishnaiah was alive. Even though, we consider that said Gopalakrishnaiah was alive till 2012 that means to say, the executor was very much alive for about six years from the date of execution of Sale Deed Ex.D.1. But, no attempt was made by the Plaintiff or said Gopalakrishnaiah during his lifetime to question the Ex.D.1. Apart from that, even according to the Plaintiff, after execution of Ex.D.1 i.e., from the year 2006 3rd Defendant was managing the whole affairs of the Suit Property including receipt of rent etc. It is to be noted here that Plaintiffs who were residing in the Suit Property itself. Apart from that, Plaintiff No.1 is herself signatory to Ex.D.1, inspite of that till 2014 Plaintiff did not questioned the alienation made in the year 2006. Hence, as rightly argued by the Learned Counsel for the Defendant, question of Limitation Act also comes into operation.
16. It is significant here to note that, even though Plaintiff make much on the fact that no consideration is passed and executor has no balanced mind to execute 27 O.S.No.25486/2014 Sale Deed etc. But absolutely, not even prima-facie materials placed by the Plaintiff to support this contention. At this stage, it is relevant to have a look at the provision of Section 91 and 92 of Evidence Act which reads as under:
91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document. -- When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained. Exception 1.--When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved. Exception 2.-- Wills 3[admitted to probate in 4[India]] may be proved by the probate. Explanation 1.--This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document and to cases in which they are contained in 28 O.S.No.25486/2014 more documents than one. Explanation 2.--
Where there are more originals than one, one original only need be proved.
Explanation 3. -- The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact. Illustrations (a) If a contract be contained in several letters, all the letters in which it is contained must be proved. (b) If a contract is contained in a bill of exchange, the bill of exchange must be proved. (c) If a bill of exchange is drawn in a set of three, one only need be proved. (d) A contracts, in writing, with B, for the delivery of indigo upon certain terms. The contract mentions the fact that B had paid A the price of other indigo contracted for verbally on another occasion. Oral evidence is offered that no payment was made for the other indigo. The evidence is admissible. (e) A gives B a receipt for money paid by B. Oral evidence is offered of the payment. The evidence is admissible.
92. Exclusion of evidence of oral agreement. -- When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its 29 O.S.No.25486/2014 terms: Proviso (1). -- Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, 1[want or failure] of consideration, or mistake in fact or law. Proviso (2). --The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document. Proviso (3). --The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved. Proviso (4). --The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents. Proviso (5). -- Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved: Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of 30 O.S.No.25486/2014 the contract. Proviso (6). -- Any fact may be proved which shows in what manner the language of a document is related to existing facts.
17. In this background, if we analyze the case of Defendant, it indicates that Defendant got placed original Sale Deeds of both Ex.P.1 and Ex.P.3, documents produced by the Plaintiff also indicates that Khatha of the Suit Property stands in the name of Defendant No.3 in the year 2006 itself. The Rent Agreement clearly indicates that in the year 2008 and 2010 the Defendant No.3 entered into Rent Agreement with the Tenants. All these facts clearly indicates that from the date of Ex.D.1 Defendant No.3 is managing the whole affairs of the family. When admittedly, the Plaintiffs were in possession of the Suit Schedule Property at the time of execution of Ex.D.1 and subsequent days also no efforts were made by the Plaintiff to question the instrument Ex.D.1 and also as mentioned above, the very executor himself not questioned the Sale Deed executed by him during his lifetime. When admittedly the Suit Property is the self- 31 O.S.No.25486/2014 acquired property of Sri. Gopalakrishnaiah and when there are no materials to establish that fraud or misrepresentation is played in execution of Ex.D.1 and also when there are no materials to hold that the executor was not in a balanced stated of mind coupled with the support of Section 91 and 92 of Evidence Act probablizes the theory of Defendant No.3 that the Plaintiff being in permissive possession of the Suit Premises at the mercy of Defendant No.3 trying to make gain by filing this suit when they were asked to vacate the premises cannot be ruled out. Under these circumstances, I hold that the Plaintiffs have failed in establishing the fact that the Suit Property is available for partition and the Sale Deed Ex.D.1 is hovering with the cloud of fraud or misrepresentation. Hence, I answer Issue No.1 and 2 in the Negative.
18. Issue No.3:- In view the discussions made above and answering Issue No.1 and 2 in the Negative, the Plaintiffs are not entitled for the reliefs claimed. Hence, I answer Issue No.3 in the Negative. 32 O.S.No.25486/2014
19. Issue No.4:- In the result, this Court proceeds to pass the following:-
ORDER The suit of the Plaintiffs is dismissed with costs. Draw decree accordingly.
[Dictated to the Stenographer directly on computer, corrected, signed and then pronounced by me in the open Court on this the 6th day of August 2022].
[K.M. Rajashekar], XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bangalore.
SCHEDULE PROPERTY All that piece and parcel of property bearing Sy.No.27/3, Site No.25, Corporation Division 31, East to West : 29 feet 6 inches (northern side), 33 feet 6 inches (southern side) and North to South :
30 feet (9.14 meters) totally measuring 88.74 square meters, situated at 9th Main, Raghavendra Block, Srinagar, Bangalore-560 050 and bounded on the:
East : 25 Feet Road.
West : Government land.
North : Site No.24.
South : Site No.26.33 O.S.No.25486/2014
ANNEXURE
1. List of witnesses examined for the Plaintiff:-
P.W.1 : Smt. Latha. P.W.2 : Smt. Lakshmamma. P.W.3 : Mahanthesh. 2. List of documents marked:-
Ex.P1 : Certified copy of Sale Deed dtd: 13.2.2006.
Ex P2 : Khatha Extract.
Ex P3 : Tax Paid Receipt.
Ex P4 : Certified copy of Sale Deed.
Ex P5 : Letter dtd: 23.6.2017.
3. List of witnesses examined for the Defendant:-
D.W.1 : Y.V. Venkatachalaih.
D.W.2 : H. Gopalakrishnaiah.
4. List of documents marked:-
Ex.D.1 : Sale Deed dtd: 13.2.2006.
Ex.D.2 : Sale Deed dtd: 28.9.1978.
Ex.D.3 &
Ex.D.4 : Photographs.
34 O.S.No.25486/2014
Ex.D.5 : Original endorsement issued by the BBMP in
favor of Defendant No.3 for having
transferred the katha of the suit schedule property.
Ex.D.6 to Ex.D.9 : Original katha extract/katha certificate issued by BBMP in favor of the Defendant No.3 for having transferred the katha of the suit schedule property (2 in Nos) EX.D.10 : Original E.C. from 1.4.2005 to 16.4.2006 in respect of the suit schedule property for having transferred the property in favor of Defendant No.3 by way of registered sale deed.
Ex.D.11 to Ex.D.24 : Original Tax Paid Receipts (14 Nos) in respect of the suit schedule property.
Ex.D.25 : Original official memorandum dtd.29-6-2007 issued by BESCOM in favor of Defendant No.3 for having transferred the electricity connection.
Ex.D.26 : Original lease agreement dtd.20-01-2008 entered into between Defendant No.3 and one G.Venkatesh in respect of portion of the suit schedule property.
Ex.D.27 : Original Lease agreement dtd.21-10-2010 entered into between Defendant No.3 and one B.N.Lokesh in respect of portion of the suit schedule property.
Ex.D.28 : Original acknowledgment issued by the Hanumanthanagar Police Station for having lodged the Complaint by Defendant No.3 35 O.S.No.25486/2014 against Plaintiff and others.
Ex.D.29 : Letter dtd: 3.10.2019.
Ex.D.30 : Letter dtd: 5.10.2019.
Ex.D.31 : Salary Particulars of Sri. Y.V. Venkatachalaiah.
Ex.D.32 to
Ex.D.35 : RTCs.
(K.M. Rajashekar)
XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bangalore.
36 O.S.No.25486/2014Judgment pronounced in the Open Court (Vide separate order) ORDER The suit of the Plaintiffs is dismissed with costs. Draw decree accordingly.
[K.M. Rajashekar], XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bangalore.