Bangalore District Court
O.S./4092/2015 on 22 September, 2022
/ 1 / O.S.No.4092/2015
THE COURT OF XL ADDITIONAL CITY CIVIL & SESSIONS
JUDGE, (CCH-41), BANGALORE CITY.
Dated 22nd day of September, 2022
YASHAWANT R TAWARE,
B.Sc., LL.B.,(Spl.),
XXXIX Additional City Civil & Sessions Judge,
C/C of XL Additional City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT NO.4092/2015
Plaintiff :
Dr.K.H.Anasuya D/o. Late Huchappa,
70 Years, R/o.No.180, HIG 3rd Cross, 4th
Main Road, Ramakrishnanagar 'H' Block,
Mysore - 570 023. Presently camping at
Bengaluru.
[By Sri.S.Prasad, Advocate]
/ VERSUS /
Defendant :
Dr.R.Mahesh S/o. Dr.M.Ramaiah, 46 Years,
R/o.No.918-3AC, 1st Block, HRBR Layout,
Kalyan Nagar, Bengaluru - 560 043.
Also at : No.81, The Murray's Brae,
Liberton Edinburgh, EH 178, UJ Scotland,
U.K.
[By Sri.R.Sivaramakrishna Advocate]
Date of Institution of the
: 29.04.2015
suit
/ 2 / O.S.No.4092/2015
Suit for permanent and
Nature of suit : mandatory injunctions
Date of commencement of
evidence : 04.01.2016
Date on which the
judgment is pronounced : 22.09.2022
Duration taken for Years Months Days
:
disposal 07 04 23
JUDGMENT
The plaintiff has filed this suit for the cancellation of the regd. Gift Deed dated 8.7.2005 said to have been executed by her in favour of defendant in respect of the plaint schedule property on the ground of fraud and for the delivery of vacant possession of the said property from defendant and also for permanent injunction restraining the said defendant from alienating the said property in any manner whatsoever in favour of any third person.
2. The plaint averments in brief are that :
The plaintiff is absolute owner of property bearing No.3AC/918, Block No.1, measuring East - West 12.20 meters, North - South 18.50 meters totally 225.70 sq. meters situated at / 3 / O.S.No.4092/2015 Hennur-Banasawadi Road extension, Bengaluru more particularly as described in the schedule of the plaint. Initially, the Bangalore Development Authority has allotted the said vacant site i.e., schedule property in favour of the plaintiff under regd. Lease Cum Sale Agreement dated 3.3.1986. The Possession Certificate No.81/1986-87 also came to be issued on 6.3.1986.
After completion of the said lease period, the B.D.A. has executed absolute regd. Sale Deed dated 17.12.1996 in favour of the plaintiff in respect of the schedule property. Since then, the plaintiff was in peaceful possession and enjoyment of the schedule property in her capacity as its absolute owner. The defendant is cousin brother of plaintiff i.e., son of plaintiff's aunt.
The plaintiff is a spinster. She started her carrier in medicine at Bangalore Medical College on 21.1.1980 as Lecturer in Skin Department. Later on, she was transferred to Mysore where she retired as a Senior Specialist at K.R.Hospital, Mysore on 31.10.2003. The defendant has also completed MBBS. On the advice of plaintiff, the said defendant appeared in PLAB exams for post graduate studies in U.K. for which the plaintiff paid / 4 / O.S.No.4092/2015 Rs.77,400/- for Part-I PLAB exam and Rs.99,000/- for Part-II PLAB exam which was held at U.K. The defendant has succeeded in the said PLAB exam and he got his job in U.K. and since then he is staying at Edenburg in U.K. Whenever the said defendant used to return Bengaluru, he was staying with plaintiff as there was no cordial relationship between him and his younger brother Lava so as to stay at their residence in Sadashiv Nagar, Bengaluru. The said defendant has advised the plaintiff to raise loan and construct building in the schedule property and he would stand as a co-obligant guarantor for the said loan and she can discharge the said loan amount by giving the portion of the said building on lease to the tenants. The plaintiff very much impressed on such advise of the defendant and agreed to put up construction in the schedule property by raising loan.
Accordingly the defendant had taken all the original documents pertaining to the schedule property with the Canara Bank, R.M.V. Extension, Bengaluru for processing the loan documents. The said defendant has brought blank sheets on 30.6.2005 and obtained the signatures of the plaintiff on the said sheets by / 5 / O.S.No.4092/2015 representing her that the said sheets are required for preparing mortgage deed by deposit of title deeds for raising the loan. The plaintiff has very good faith in the defendant and as such she signed on the said blank sheets where the defendant also signed along with the plaintiff. After few days, the defendant brought the plaintiff to the Office of Sub-Registrar, Krishnaraja Puram by representing her that she is going to execute mortgage deed by deposit of title deed in the said office. In the said Office of Sub- Registrar, the plaintiff was made to sit before a computer system and her photographs were captured and her thumb impressions were taken, her signatures were also taken on her photographs and accordingly the deed came to be registered. The defendant informed the plaintiff that the mortgage deed would be sent to the bank. Thereafter, the loan was released and the construction of the building in the schedule property started very briskly and during such construction work, the plaintiff used to inspect the said construction work and she was also made to pay some amounts to the contractor. The plaintiff has also raised another loan of Rs.5,00,000/- towards personal loan with Indian Overseas / 6 / O.S.No.4092/2015 Bank and paid the said loan amount for the construction of the building in the schedule property. After the construction of the building is completed, simple pooja was held and the defendant occupied in the ground floor and the plaintiff was allotted a separate room exclusively for her own use and other portions in the ground, first and second floors were given on lease for rent amounting to Rs.60,000/- per month. The defendant was collecting the said rents and paying towards the loan installments. Whenever the plaintiff used to visit Bengaluru from Mysore, she used to stay in her house in the schedule property for 3 - 4 days and then she was going back to Mysore. This state of affairs continued till 8.3.2015 on which day the defendant's wife badly abused the plaintiff and informed that the said building is not in the ownership of plaintiff. On 12.3.2015 plaintiff asked about his wife's reply where upon the defendant also confirmed that the building in the schedule property belongs to his ownership. On knowing this, the plaintiff suffered shock and underwent mental trauma. Few days thereafter, the plaintiff approached the Office of Sub-Registrar, K.R.Puram and verified / 7 / O.S.No.4092/2015 the files and came to know that the defendant has practiced fraud upon her by misrepresenting that she is executing the mortgage deed and got executed from her a regd. Gift Deed in his favour in respect of the schedule property. The plaintiff also came to know that, on the basis of the said regd. Gift Deed, khata is also changed in the name of defendant. It is also learnt by the plaintiff that the defendant on the strength of the said regd. Gift Deed and his name appeared in the khata, is doing hectic efforts to alienate the schedule property in favour of third person to make illegal gain for himself and to cause wrongful loss to the plaintiff. Therefore, the plaintiff having left with no other alternative has constrained to file this suit against the defendant.
3. In response to the service of summons, the defendant represented by his power of attorney holder has entered his appearance through Sri.R.Sivaramakrishna, the learned counsel and filed the written statement in defence to this suit of the plaintiff. The defendant has denied the material plaint averments in toto in the written statement. However, the said / 8 / O.S.No.4092/2015 defendant categorically admitted that initially the B.D.A. has allotted Site No.3AC-918 measuring totally 220.70 sq. mts. in favour of the plaintiff under regd. Lease cum Sale Agreement dated 3.3.1986 and after completion of the said lease period, it has executed absolute registered sale deed in respect of the said site in favour of the plaintiff on 29.11.1996. The defendant has also admitted that he is cousin brother of the plaintiff i.e., son of plaintiff's aunt by name Savithramma and also the fact that the said plaintiff is a splinster and she started her carrier in B.M.C. as a Lecturer in Skin Department and retired as a Senior Specialist at K.R.Hospital at Mysore on 31.10.2003. The defendant has emphatically denied that he was sitting idle after completion of his MMBS for two years and on the advise of plaintiff, he joined as a Tutor in JSS Medical College, Mysore and during that point of time on the advise of plaintiff, he took PLAB exams and the said examination fee was paid by the plaintiff. He has admitted that he passed in the said PLAB exams and doing job at U.K. and staying in Eadenberg, U.K. The defendant has denied the contents of para 8 of the plaint and contended that he used to / 9 / O.S.No.4092/2015 stay with his parents at R.M.V. Extension, Sadashiva Nagar, Bengaluru whenever he paid visit to Bengaluru. The defendant has denied the contents of para 9 of the plaint and contended that the said averments are made only to prejudice the mind of the Court and further contended that he was not in need to induce the plaintiff to take up construction work in the schedule property by raising loan. The defendant has also denied the contents of para 10 of the plaint in general and specifically denied that he had obtained plaintiff's signature on the blank sheets by representing her that her signature is required for execution of the mortgage deed. The defendant has denied the contents of the para 11 of the plaint. He has taken up contentions that the plaintiff is not illiterate woman and she is highly qualified and retired as a Senior Specialist at K.R.Hospital, Mysore and as such her contention that she was taken to the Office of Sub-Registrar for the purpose of registration of the mortgage deed cannot be believed. He has contended that, the plaintiff has voluntarily gifted the plaint schedule property in favour of the defendant on account of her love and affection by / 10 / O.S.No.4092/2015 executing a regd. Gift Deed dated 7.7.2005 which shows that the plaintiff has signed on each page below the contents of each sheet as the said document is typed in computer and it could not have adjusted so as to come the typed matter exactly above the signature of the plaintiff on a blank paper and as such the contentions of the plaintiff that the defendant obtained her signatures on the blank sheets and got her photographs by representing that she is executing a mortgage deed by deposit of title deeds cannot be believed. The defendant has denied all the allegations of fraud in the plaint and contended that there was no need for him to play fraud on the plaintiff since he too is a qualified doctor and working in Edinburgh in U.K. The defendant has denied the contents of para 12 of the plaint that the plaintiff had raised a loan of Rs.5,00,000/- towards personal loan with the Indian Overseas Bank and paid the said amount for the construction of the building in the schedule property. The defendant has denied the contents of para 13 of the plaint and contended that the plaintiff herself has gifted the schedule property by executing regd. Gift deed dated 7.7.2005 and she / 11 / O.S.No.4092/2015 filed the present suit in the year 2015 which is hopelessly barred by law of limitation. The defendant has admitted that, he has accepted the said gift and got transferred its khata in his name and he had constructed the building by obtaining necessary construction permission with sanctioned plan by incurring his own money and the loan obtained from Canara Bank. The defendant has denied the contents of the paras 16 to 18 of the plaint stating that the said averments are self-serving for the purpose of this suit. He has taken up contentions that once the gift deed is executed, it cannot be cancelled under any circumstances unless it is conditional gift deed. That the plaintiff being highly qualified lady knowing full well about the nature of her acts has executed the gift deed and as such she cannot seek for cancellation of the said regd. Gift Deed that too after lapse of long ten years. It is further contended that, there is no cause of action arisen to the plaintiff to file this suit and she is not entitled to any reliefs since her first relief is barred by limitation and third relief is against the rule of perpetual and when the first and third reliefs cannot be granted, the second relief of handing over / 12 / O.S.No.4092/2015 the vacant possession of the plaint schedule property does not arise and as such the whole suit of the plaintiff is liable to be dismissed. On these grounds, the defendant has prayed for dismissing the suit of the plaintiff with costs.
4. On the strength of respective pleadings and documents of the parties, my learned predecessor has framed the following issues :
(1) Whether the plaintiff proves that the defendant has got executed registered Gift Deed from her in his favour by playing fraud and mischief without her knowledge as alleged ?
(2) Whether the defendant proves that the plaintiff herself voluntarily gifted the suit schedule site in his favour by executing a registered gift deed dated 07.07.2005 ?
(3) Whether the plaintiff proves that the alleged Gift Deed got executed by defendant by playing fraud and mischief has to be cancelled as alleged ?
/ 13 / O.S.No.4092/2015 (4) Whether the defendant proves that the suit is barred by limitation ?
(5) Whether the plaintiff is entitled for the relief sought for ?
(6) What order or decree?
5. In order to prove the case, the plaintiff has got examined herself as P.W.1 and another witness as P.W.2 and relied upon in all fifty nine documents marked at Exs.P.1 to P.59 and closed her side.
By way of rebuttal, the defendant has got examined his GPA holder as D.W.1 and relied upon in all seventy five documents marked as Exs.D.1 to D.75 and closed his side.
6. I have heard Sri.K.S.Vedivelu, the learned counsel for the plaintiff, Sri.R.Sivaramakrishna, the learned counsel for defendant.
7. My findings to the above issues are as under:
ISSUE NO.1,3 & 4 : In the affirmative.
ISSUE NO.2 AND 5 : In the negative.
/ 14 / O.S.No.4092/2015
ISSUE NO.6 : As per final order passed
below for the following:
REASONS
8. ISSUE NO.1 TO 3
As these issues are interlinked with each other, I take them at one stretch for my consideration and determination to avoid repetition of facts.
The defendant in para 1 of his written statement has categorically admitted that initially, the Bangalore Development Authority has allotted the schedule property which was then a vacant site bearing No.3AC-918 measuring East - West 12.20 meters and North - South 18.50 meters i.e., totally 225.70 Sq.
Meters situated at Hennur - Banasawadi Road Extension, Bengaluru in favour of plaintiff under Lease cum Sale Agreement dated 3.3.1986 and after completion of the said lease period, it has conveyed the said vacant site in favour of plaintiff by executing regd. Sale Deed dated 29.11.1996 and by the virtue of the said regd. Sale Deed, the plaintiff was in peaceful possession and enjoyment of the said vacant site since then in her capacity / 15 / O.S.No.4092/2015 as its absolute owner. The plaintiff has produced Lease Cum Sale Agreement dated 3.3.1986 as per Ex.P.1 and also the regd. Sale Deed dated 29.11.1996 as per Ex.P.2 in this case. In view of this categorical admission of defendant, a conclusion can be made that the plaintiff herein is absolute owner of the schedule property which was then a vacant site over which now a super structure is built up.
9. It is the specific case of the plaintiff that, the defendant herein is her cousin brother i.e., son of her aunt Smt.Savitramma. He was a MBBS graduate. The plaintiff was in cordial relationship with the defendant due to their close relationship. She helped him in securing a job a tutor in JSS Medical College at Mysore and also in writing the PLAB exams for post graduate studies by paying exam fees of Rs. 77,400/- for Part-I PLAB exams and Rs.99,000/- for Part - II PLAB exams and he successfully passed the said exams and he got job in U.K. and since then he is staying in Edenburg in U.K. It is further specific case of the plaintiff that, whenever the defendant used to return / 16 / O.S.No.4092/2015 to India, he used to stay with the plaintiff since there was no cordial relationship between him and his brother Lava to stay at their residence in Sadashiv Nagar, Bengaluru. It is also the case of the plaintiff that, the defendant has induced her to construct a house in her vacant site by raising loan and he assured that he would stand as a co-obligant / guarantor in view of his lucrative job and she very much impressed on such advice of defendant and agreed to put up construction on her vacant site. It is further case of the plaintiff that, on 30.6.2005 the defendant has brought some blank sheets and obtained her signatures on the said blank sheets saying that it is required for the preparation of the mortgage deed to raise loan in Canara Bank, R.M.V. Extension, Bengaluru and that she has very good faith in him and as such she signed on the said blank sheets. It is further case of the plaintiff that, she had gone along with her friend to the Office of Sub-Registrar, Krishnaraja Puram to execute the regd. Mortgage Deed and there, she was made to sit before the computer system and her photographs were captured and her thumb impressions were taken and her signatures at the place of her photographs / 17 / O.S.No.4092/2015 were also taken and she was not shown any document and she was informed by the defendant that the bank would collect the regd. Mortgage Deed and thereafter, loan amount was released and construction work started very briskly and she also used to inspect the said construction work and she was also made to pay some payments to the contractor. It is further case of the plaintiff that she had applied loan of Rs.5,00,000/- with Indian Overseas Bank towards personal loan and paid the said amount for the construction in her vacant site. It is further case of the plaintiff that, after completion of the construction of house, a simple pooja was held and she was allotted a room for her exclusive use and other portions in the basement, first and second floors were given on lease for Rs.60,000/- per month and the defendant used to collect the said rent and pay towards loan installments. It is the further case of the plaintiff that, whenever she used to pay visit in Bengaluru, she was staying in her aforesaid house for 3 - 4 days and return back to Mysore and this state of affair continued till 8.3.2015 on which day, the wife of the defendant badly abused her and told that plaintiff does not have / 18 / O.S.No.4092/2015 any right towards the schedule property and thereafter, she enquired about this fact with the defendant who also told that the schedule property belongs to him and on hearing this, she suffered shock and underwent mental trauma and she verified the records in the Office of Sub-Registrar, K.R.Puram and she came to know that the defendant by misrepresenting her that she is executing a mortgage deed for the purpose of raising loan has fraudulently got executed a regd. Gift Deed dated regd. 8.7.2005 in his favour in respect of the schedule property and that the said regd. Gift Deed is a sham, bogus and fraudulent document and she never executed any such regd. Gift Deed in favour of defendant and as such the defendant is liable to hand over the vacant possession of the schedule property to her. It is to note that P.W.1 who is plaintiff herein has reiterated all these above facts in her affidavit filed in lieu of examination-in-chief. The said P.W.1 has been extensively cross-examined running into several pages, but nothing worth is elicited to believe that the plaintiff with conscious state of mind knowing full well of the nature of the document that she was executing, has executed the / 19 / O.S.No.4092/2015 regd. Gift Deed dated 8.7.2005 in favour of the defendant in respect of the schedule property.
10. As per Section 68 of the Indian Evidence Act, if a document is required by law to be attested, such document could be used as evidence only if atleast one attesting witness has been called for proving the execution of such document, subject ofcourse to such attesting witness being alive and also being subject to the process of Court and capable of giving evidence.
The proviso to Section 68 would however clarify that it shall not be necessary to call an attesting witness in proof of execution of the document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act unless its execution by the person by whom it purports to have been executed is specifically denied. Section 23 of the Transfer of Property Act provides that a deed of gift is to be attested by atleast two witnesses. Hence, the gift deed being a document required to be attested as per law, can be used as evidence by examining an attesting witness if the execution of such gift deed / 20 / O.S.No.4092/2015 is specifically denied. The legal position therefore is that the requirement to examine an attesting witness to the document in question would arise only if the executant specifically denied the execution of the document itself. In the instant case the plaintiff had unequivocally denied the execution of the regd. Gift Deed dated 8.7.2005 in favour of defendant in respect of the schedule property which was then a vacant site, on the ground of fraud. Therefore, the burden of proving due execution of the said regd. Gift Deed by the plaintiff herein is wholly caste upon the defendant herein who was claiming schedule property under the said document. It is very significant to note that, the defendant has not chosen to examine any attesting witnesses of the said regd. Gift Deed dated 8.7.2005 to prove its due execution by the plaintiff herein. However, the plaintiff herself has summoned and examined one of the attesting witness of the said regd. Gift Deed dated 8.7.2005 i.e., P.W.2 herein to prove her contention that the said document has been fraudulently got executed from her by misrepresenting her that she is executing the mortgage deed in respect of the schedule property for the purpose of / 21 / O.S.No.4092/2015 raising loan with the Canara Bank, Bengaluru for the construction of the house building. The relevant portion of the evidence of said P.W.2 - attesting witness in the form of affidavit filed in lieu of examination-in-chief are extracted herein below :
" On 8.7.2005, Dr.K.H.Anasuya, requested me to be present for executing a Mortgage Deed to be executed to Bank for procuring loan. I enquired with the said Dr.K.H.Anasuya, why after retirement she has to avail loan for construction. For that Dr.K.H.Anasuya replied that it is not for her but for her cousin Dr.R.Mahesh, with whom I had a faint acquaintance through Dr.K.H.Anasuya. I know Dr.K.H.Anasuya from Past 56 years as we were classmates from our B.Sc in 1966 and also in M.B.B.S. at Bengaluru and even now we are friends. Based on the request I went to the Sub- Registrar office of K.R.Puram at Bengaluru.
After reaching Sub-Registrar Office, Dr.K.H.Anasuya enquired about the said Mortgage Deed to know the contents. The same was with Dr.M.Ramaiah, and he informed all three of us i.e., Dr.K.H.Anasuya, myself and K.G.Rajeevi that the / 22 / O.S.No.4092/2015 same will be given later and be prepared for photograph and finger print to be taken by the concerned Sub-Registrar, Bengaluru. In the Sub- Registrar office, firstly the photographs and thumb impression of Dr.R.Mahesh were taken and then called Dr.K.H.Anasuya and without knowing any contents of the said instrument Dr.K.H.Anasuya believing in the words of Dr.R.Mahesh went and sat for photograph and thumb impression along with their respective signatures. After that I affixed my signature and then K.G.Rajeevi (who demised in the year 2009) affixed her signature. Even after that also nothing was revealed to us about contents of the alleged registered document."
Thus, the P.W.2 attesting witness has categorically denied the execution of the regd. Gift Deed dated 8.7.2005 by the plaintiff herein in the presence of her and another attesting witness. The said P.W.2 has categorically stated that on 8.7.2005 she along with plaintiff and another witness by name K.G.Rajeevi had gone to the Office of the Sub-Registrar, K.R.Puram in Bengaluru and there, firstly the photograph and thumb impression of defendant were taken and then the plaintiff was / 23 / O.S.No.4092/2015 called who believing in the words of defendant without knowing the contents of the instrument, sat for photograph and thumb impression and thereafter, the signature of the P.W.2 was taken and then signature of K.G.Rajeevi (who demised in the year 2009) was taken and even thereafter also, nothing was revealed to them about the contents of the alleged instrument. The evidence of this P.W.2 - attesting witness is in consonance with the evidence of plaintiff - P.W.1 that, the defendant has fraudulently got executed the regd. Gift Deed dated 8.7.2005 in his favour in respect of the schedule vacant site by misrepresenting that she is executing the mortgage deed to raise the loan. It is worth to notice that, the entire material evidence of this P.W.2 - attesting witness has almost remained unimpeached, unrebutted and in tact in the course of her cross-examination since the learned counsel for the defendant has not at all denied her material evidence and asked only two suggestions that the said P.W.2 had not received any summons from the Court and the regd. Gift Deed marked at Ex.P.3 bears her signature, which the said P.W.2 has admitted as true. It is to note that the provisions of Rule(1-A) / 24 / O.S.No.4092/2015 of Order XVI of Code of Civil Procedure, 1908 empowers the Court to permit a party to bring any witness to give evidence or to produce documents without applying for summons under Rule(1). Therefore, even if it is taken that no any summons is issued to P.W.2 attesting witness to give evidence, the plaintiff is entitled to bring the said witness by his own to give evidence without applying for issuance of summons. The next suggestion put to the P.W.2 is that, the regd. Gift Deed marked at Ex.P.3 bears her signature, which she admitted as true. It is to note that mere signing on a document would not tantamount to conscious execution and it requires something more particularly when it is alleged that the signature of the plaintiff on the gift deed is obtained by misrepresentation. The execution of document does not mean mechanical act of signing the document or getting it typed and signed without understanding the contents thereof. It must be proved through the evidence of the attesting witness that the executant had appreciated and understood the contents of the document. The signing of the document should be after understanding the contents of the document. The execution of / 25 / O.S.No.4092/2015 the document implies that the executant intended to execute with conscious appreciation of the contents of the document. Therefore, a person who signed as an attesting witness has to satisfy himself that he received personal acknowledgement of the execution of the document from the executant and after the deed is signed and attested, it is taken for registration. This requirement falls short of to the mandatory requirements of Section 68 of the Indian Evidence Act. Therefore, it follows that, the defendant has has failed to prove the due execution of the regd. Gift Deed dated 8.7.2005 in terms of Section 68 of the Indian Evidence Act.
11. It is to note that the defendant in the instant case has not stepped into the witness box to depose about the facts which are exclusively within his personal knowledge. The D.W.1 is father of defendant who is holding power of attorney of the defendant. The said D.W.1 has deposed in place of defendant on the basis of the said power of attorney. The affidavit of said D.W.1 filed in lieu of examination-in-chief runs into 36 pages, / 26 / O.S.No.4092/2015 majority of which portion are wholly irrelevant and without pleadings. What transpired between the plaintiff and defendant before, at the time of, and after execution of the regd. Gift Deed dated 8.7.2005 is within the personal knowledge of defendant only. D.W.1 cannot have the personal knowledge of the said facts unless it is established that he was accompanying the defendant on each and every time the defendant met with the plaintiff. Therefore, the question that falls for consideration is, whether the evidence of D.W.1 who has deposed about the due execution of the regd. Gift Deed by the plaintiff, is admissible in evidence. The Hon'ble Apex Court in the case of Janaki Vasudev Bhojvani and Another Vs. Indusind Bank Ltd., and others reported in (2005) 2 Supreme Court Cases 217 has held that, the word 'acts' in Order III Rule 1 and 2 would not include deposing by a power of attorney holder in place of and instead of the principal for the acts done by principal and not by power of attorney holder and as such power of attorney holder cannot depose for principal in respect of matters of which only principal can have personal knowledge and in respect of which principal is liable to be cross-examined and / 27 / O.S.No.4092/2015 that the power to depose by a power of attorney holder extends only to depositions in respect of 'acts' done by power of attorney holder in exercise of power granted by the instrument. The law laid down by the Hon'ble Apex Court being stood thus, it automatically follows that the D.W.1 is entitled to depose on behalf of the defendant only in respect of the 'acts' done by him in exercise of the power granted to him under the deed of power of attorney and he cannot depose for the defendant in respect of matters of which only the defendant has the personal knowledge and liable for cross-examined. Therefore, I am to hold that the evidence of D.W.1 deposed to with regard to due execution of regd. Gift Deed dated 8.7.2005 by the plaintiff in favour of defendant in respect of the schedule property is inadmissible and liable to be rejected. Once the evidence of D.W.1 is discarded, the evidence that remained on record is that of P.W.1 and attesting witness P.W.2 coupled with the copy of the regd. Gift Deed dated 8.7.2005 as per Ex.P.3. At the cost of repetition I am to say that, nothing is brought out in the course of cross-examination of P.W.1 to believe due execution of the regd. Gift Deed dated / 28 / O.S.No.4092/2015 8.7.2005. The relevant suggestions put to the said P.W.1 with regard to due execution of the regd. Gift Deed are found on page Nos.32, 33, 34 and 35 of the cross-examination and it can be seen that nothing worth is brought out except that of a total denial. Thus, the evidence of P.W.1 that the defendant got executed a regd. Gift Deed dated 8.7.2005 from her in a fraudulent manner by misrepresenting that she is executing the mortgage deed for availing the loan for the construction of the house in schedule vacant site has remained intact and unrebutted. So far as the evidence of P.W.2 - attesting witness is concerned, her entire evidence has remained unimpeached, unchallenged and unrebutted as the said material evidence has not been controverted to in the course of her cross-examination except two bald suggestions that she had not received any summons from the Court and the gift deed bears her signatures. In the light of these unimpeached evidence on record by the plaintiff, a conclusion can be made that the defendant has miserably failed to prove that the plaintiff has voluntarily gifted the schedule vacant site in his favour by executing as regd. Gift Deed dated / 29 / O.S.No.4092/2015 8.7.2005. On the other hand, the plaintiff has convincingly established that the defendant has got executed the said regd. Gift Deed from her by practicing fraud upon her and as such the said instrument is liable to be cancelled. In the result, the Issue No.1 and 3 are answered in the affirmative in favour of the plaintiff and Issue No.2 is answered in the negative against the defendant.
12. ISSUE NO.4 AND 5
As these issues are interlinked with each other, I take them at one stretch for my consideration and determination to avoid repetition of facts.
It is to note that the plaintiff has sought the relief of delivery of vacant possession of the schedule property to her from defendant. The schedule property is not a vacant site, but it consists of a house building. As can be gathered from the pleadings averred in para 9 to 13 of the plaint, it is the case of the plaintiff that the defendant has induced her to construct a house building in the schedule vacant site by raising loan from / 30 / O.S.No.4092/2015 the Canara Bank and the said loan can be discharged by giving the portions of the constructed building on lease and she impressed upon his such advise and agreed to raise the loan and thereafter, the defendant brought some blank sheets and obtained her signatures by stating that it is required for the preparation of mortgage deed to raise the loan and some days thereafter, she was taken to the Office of Sub-Registrar, K.R.Puram, Bengaluru and in the said office, she was made to sit before the computer system and her photographs were captured and her thumb impressions were taken and her signatures were taken at the place of photographs and the contents of the instrument was not revealed to her and she was informed that the bank will collect the said mortgage deed and thereafter, the loan was released and construction work began with full swing and after construction work is completed, simple pooja was held and she was allotted a room exclusively for her use and other portion in the basement, first and second floors were given on lease for rent of Rs.60,000/- p.m. and defendant used to collect the said rents and paid towards loan installments. Thus, by means of / 31 / O.S.No.4092/2015 these pleadings, the plaintiff has sought to establish that she has raised loan with the Canara Bank by mortgaging the schedule vacant site and constructed the house building therein. P.W.1 has deposed in consonance with her aforesaid pleadings in her affidavit filed in lieu of examination-in-chief. But however, in the course of cross-examination, the facts elicited from P.W.1 with regard to raising of loan and construction of building in schedule property is totally in variance to the pleadings averred in the plaint. The said relevant portions of the depositions of the P.W.1 elicited in the course of her cross-examination are extracted herein below :
"..... It is true to suggest that defendant by availing loan from bank has constructed house on suit property. I do not know whether defendant invested his money along with bank loan for constructing the house or not.....
It is true to suggest that defendant is receiving rent. Defendant told me as he is receiving rent of Rs.60,000/- p.m. I have not executed rent agreement to the tenants....
/ 32 / O.S.No.4092/2015 It is true to suggest that defendant has constructed the house and he is enjoying....
I do not remember the date on which defendant suggested me that he was earning and the property stood in your name and it would be very easy for him to get loan for the purpose of constructing the house. Witness volunteers that it was suggested by defendant during June-2005 in my house at Mysore. Defendant assured that schedule property remains in my name only, but he will avail loan and he will be guarantor for said loan. I told defendant to construct small house measuring 24 square feet (lower and first floor). For construction of this area will fetches around 24-lakhs. Defendant told that he will avail loan from bank and also spend his own money for construction. Defendant has not told me about how much loan he is going to avail and how much amount he is going to spend from his pocket for construction.....
I have not made any enquiry about from where defendant is availing loan for construction. I do not know on which date defendant had made enquiry in the bank for availing loan. Defendant met me on 30.6.2005 and told that bank has assured of / 33 / O.S.No.4092/2015 sanctioning loan, but defendant has not told me the amount of loan. It is true to suggest that the defendant intends to avail loan on the suit site itself. It is true to suggest that the owner of the property alone has to avail loan from the bank. I visited bank once during 2009 in connection with repayment of loan. On that day Rs.1,80,000/- was remitted in the name of defendant. Receipt regarding remittance of the amount has been produced in this case. I have not signed any loan document in the bank. I do not know what is the sanction of loan, number of installments, interest sanctioned by the bank to defendant...
Defendant took all the documents from me pertains to suit site such as sale deed, lease cum agreement and tax paid receipt for availing loan in the year 2005. I have not signed loan application. I do not know when loan has been sanctioned to defendant. I have not made any effort to know date of sanction of loan. I do not know when first installment of the loan has been sanctioned by the bank and amount of first installment.....
Defendant himself has got approved plan, licence for construction of building in the suit / 34 / O.S.No.4092/2015 schedule property. I have not seen approved plan till this date. I do not know what is the estimated cost of the construction. Defendant has started construction work during August-2005. I have paid Rs.46,000/- for drilling the borewell. I have not produced any receipt in this regard. It is true to suggest that defendant has got drilled the borewell, but amount was paid by me. I have paid the amount to the contractor. I have not made any enquiry to know who was the contractor. I do not know the transaction between contractor and defendant for construction of building. I have not made any enquiry regarding building materials used for construction work. I do not know from where defendant purchased the building materials. I have not verified the documents kept by defendant regarding purchase of building materials etc.....
The receipts (Ex.P.51 to 58) issued by carpenter. I do not know what was the carpentry work entrusted to the carpenter for the amount covered in these receipts. On the next date of information from defendant I used to pay the amount covered in the receipts to the carpenter. Defendant used to inform me for making payment / 35 / O.S.No.4092/2015 from United Kingdom. I have not produced any document to show that defendant No.1 has informed me for making payment to carpenter.....
I do not know to whom defendant had entrusted the work of taking care of construction work. I have not intimated to BBMP about completion of building work on the suit schedule property. I do not know when the contractor has given completion letter. After completion of building work I have not made enquiry with defendant about exact expenses incurred for construction of building. I have not asked defendant to stop the construction work at any time. I have not made any enquiry with defendant about expenses for construction of building made by spending personal money and bank loan. I have not made any enquiry in whose name loan has been availed and what is the loan amount. Even after filing the suit I have not made any enquiry. I do not know whether loan amount has been cleared or not. I have not taken any document from defendant for handing over Rs.5-lakhs to him. It is not true to suggest that I have not given amount to defendant and I am deposing falsely as I have given Rs.5-lakhs to defendant.....
/ 36 / O.S.No.4092/2015 I do not know when corporation officials visited the suit property for assessing the building tax purpose. I do not know what is the tax amount fixed by corporation. No written agreement between me and defendant about construction of building by defendant on the suit site it was only oral understanding between us. It is not true to suggest that no oral understanding regarding construction of building between me and defendant taken place. I have not made any enquiry regarding making payment for tax to corporation so far.....
It is not true to suggest that I asked defendant for Rs.10-lakhs as I was intended to construct another floor on the schedule property in order to get rent. It is not true to suggest that when defendant expressed his inability to pay Rs.10-lakhs I with an intention to harass him filed this suit. It is not true to suggest that I have executed gift deed in respect of schedule premises voluntarily in favour of defendant."
As can be seen from the above elicitation, P.W.1 has categorically admitted that the defendant has availed loan from the bank and constructed the house in the schedule property.
/ 37 / O.S.No.4092/2015 She has categorically admitted that the defendant is receiving rent of the leased portions to an extent of Rs.60,000/- p.m. and he is in occupation of the remaining portion of the constructed house and enjoying it. The said P.W.1 is not aware as to whether the defendant has invested his own money for the construction of the house apart from the loan borrowed. The said P.W.1 is not aware as to how much loan was borrowed from the bank by the defendant. The said P.W.1 is not aware as to from where the defendant has raised loan, the date of availing the loan, the amount of loan, the nature of the document executed by way of security to the said loan transaction, the exact amount of sanction of the loan, number of installments, interest on the loan etc., The said P.W.1 has given a categorical admission that she had not signed on the loan application and she did not made any effort to know the details of the loan. The said P.W.1 is not aware as to what was the estimated cost of the construction, who was the contractor, who built up the house building and the details of the building materials used for construction work and also where the said building materials were purchased. The said / 38 / O.S.No.4092/2015 P.W.2 has given a categorical admission that the defendant had got the approved plan and construction permission and she had not seen the said approved plan till the date. The said P.W.2 is not aware the fact as to in whose name the loan had been availed and the said loan is cleared or not. The said P.W.2 has categorically stated that there was no any written agreement executed between her and defendant for the construction of the building in the schedule property. All these above facts elicited in the course of cross-examination of P.W.1 coupled with Ex.D.39
- loan document very clearly demonstrates that it the defendant herein who has raised the loan from the Canara bank in his name and constructed the house building not only with the said loan amount but also investing his own amount. Although the plaintiff has made a futile attempt to establish that she had also applied for personal loan in a sum of Rs.5,00,000/- with the Indian Overseas Bank and paid the said amount for the construction of the building and she had also paid some amount for drilling the borewell and she had also paid amount to the Carpenter for the carpentry work as per Exs.P.51 to P.58, but / 39 / O.S.No.4092/2015 merely on the basis of these alleged payments it is not possible to hold that the entire building was constructed by the plaintiff herein by investing her own amount. The evidence elicited in the cross-examination of P.W.1 clearly demonstrates that this plaintiff is not aware of anything about the details of the construction and every thing with regard to the said construction work was looked after by the defendant and this plaintiff was a silent spectator and played the role of a supervisor. The facts admitted need not be proved. Therefore, without going into elaborate discussion on this aspect of the matter with reference to the documents produced in this case, a conclusion can be made that it is the defendant who has constructed the building in the vacant site of the plaintiff by investing his own money and raising loan with the bank. Now once it is arrived to a conclusion that, the defendant is owner of the building constructed over the vacant schedule site of the plaintiff, then the entire said building along with vacant site cannot be ordered to be delivered to the plaintiff without there being necessary pleadings, proof and prayer in the plaint. It is not the prayer of the plaintiff that the / 40 / O.S.No.4092/2015 possession of her vacant site be delivered to her by demolishing the building constructed by the defendant. All the while the plaintiff has sought to establish that the said building was constructed by her, which she failed to prove by adducing legally acceptable clear and cogent evidence. Having failed to prove the construction of the house building over her vacant site, the plaintiff cannot claim the possession of the entire building along with her vacant site. Looked from this view of the matter, I am of the clear opinion that although the plaintiff has successfully established that the regd. Gift Deed dated 8.7.2005 is a fraudulent document, but for want of clear and cogent evidence with regard to the construction of building by her with the loan amount, which the evidence placed on record discloses that the defendant had constructed the said building, her prayer for the delivery of vacant possession of the schedule property which consists of the house building also cannot be granted.
13. In so far as the Issue No.4 is concerned, it is the specific contention of the defendant that the plaintiff is aware of / 41 / O.S.No.4092/2015 the execution of the regd. Gift Deed dated 8.7.2005 by her in favour of defendant in respect of the schedule vacant site in the year 2005 itself and this suit seeking cancellation of the said regd. Gift Deed is hopelessly barred by law of limitation. Per contra, it is the case of the plaintiff that, she was totally unaware of the execution or existence of the regd. Gift Deed dated 8.7.2005 and it is only on 8.3.2015 when the defendant's wife quarreled with her and stated that the schedule property belongs to her husband and when she came to know from the defendant also on 12.3.2015 through phone that the said defendant is owner of the schedule property, she got verified the records in the Office of Sub-Registrar, K.R.Puram, Bengaluru and came to know about the fraudulent execution of the regd. Gift Deed dated 8.7.2005. The material pleadings in this regard are found in para 14 to 19 of the plaint. P.W.1 has reiterated all these facts in her affidavit filed in lieu of her examination-in-chief. Undisputedly, the construction of house in the schedule property has completed in the year 2008. The house warming ceremony was held on 3.2.2008 which can be evidenced from Ex.D.17 - Invitation Card.
/ 42 / O.S.No.4092/2015 P.W.1 in the course of her cross-examination on page No.34 has categorically admitted that she had attended in the house warming ceremony of which the invitation card is as per Ex.D.17 and she also invited friends and her relatives for the said house warming ceremony saying that defendant had constructed the said house. As can be seen in the Ex.D.17 - Invitation Card, the said invitation card was printed at the instance of this plaintiff wherein she had invited her friends and relatives stating that her brother Dr.R.Mahesh (defendant herein) had constructed the said house. The evidence adduced on record which is discussed herein above paragraphs also indicates that, the defendant herein had constructed the said house building and this plaintiff was fully aware of the construction of the building by the defendant through contractor and she was also personally inspecting the said construction on certain occasions. It is to note that, this plaintiff is not an ordinary lay-man. She is a qualified doctor. In similar circumstances, an ordinary prudent woman would not have allowed not even to her kith and kin to construct a super structure on her vacant site without there being any / 43 / O.S.No.4092/2015 valid reasons. The facts elicited on record indicate that, this plaintiff who is a qualified doctor has allowed the defendant to construct a building on her vacant site. The plaintiff has invited her friends and relatives to the warming ceremony stating that her cousin brother i.e., defendant herein had constructed the said house. If all these circumstances are taken into consideration, the possibility of the fact that this plaintiff was aware of the facts of execution of the regd. Gift Deed dated 8.7.2005 in favour of the defendant and on the strength of the said gift deed, the defendant had taken up the construction work by raising loan in his own name for which his father stood as a guarantor, cannot be ruled out. Therefore, it is little difficult to believe that this plaintiff did not have knowledge about the execution of the regd. Gift Deed dated 8.7.2005 and she came to know about it for the first time only during the year 2015 under the circumstances as pleaded in para 14 of the plaint. The law is well settled that the registration of a document is a deemed notice to the general public. Under Article 59 of the Indian Limitation Act, for cancellation of any registered instrument, the / 44 / O.S.No.4092/2015 period of limitation is three years from the date when the plaintiff first become known about the execution of the said document. The conduct of the plaintiff in allowing the defendant to construct huge building on her own vacant site impliedly indicates that the defendant must have knowledge about the execution or existence of the regd. Gift Deed dated 8.7.2005 in the year 2005 itself or atleast in the year 2008 when the warming ceremony was held up. If so, then it follows that this suit of the plaintiff seeking the relief of cancellation of the said regd. Gift Deed dated 8.7.2005 in the year 2015 is hopelessly barred by Article 59 of the Limitation Act, 1963. With these observations I shall conclude my discussion by holding that, although the plaintiff has successfully established that the regd. Gift Deed dated 8.7.2005 is a fraudulent document, but for want of clear and cogent evidence with regard to the construction of building by her with the loan amount, which the evidence placed on record discloses that the defendant had constructed the said building, her prayer for the delivery of vacant possession of the schedule property which consists of the house building also / 45 / O.S.No.4092/2015 cannot be granted. I am further of the opinion that, the relief sought for by the plaintiff for the cancellation of the said regd. Gift Deed dated 8.7.2005 is also barred under Article 59 of the Limitation Act, 1963. In view of my such findings, it automatically follows that the plaintiff is entitled to none of the reliefs sought for in the plaint. Accordingly, the Issue No.4 framed herein above is answered in the affirmative in favour of the defendant and Issue No.5 is answered in the negative against the plaintiff.
14. ISSUE NO.6 In view of my findings given on Issue No.1 to 5 and for the reasons discussed herein above paragraphs, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby dismissed.
Under the circumstances of the case, the parties are directed to bear their own costs.
Draw up decree accordingly.
(Dictated to the Judgment Writer, typed directly on computer, script corrected, signed and then / 46 / O.S.No.4092/2015 pronounced by me in the open court, this the 22nd day of September, 2022.) (YASHAWANT R TAWARE) XXXIX Addl. City Civil & Sessions Judge, C/C of XL Addl. City Civil and Sessions Judge, Bangalore City.
ANNEXURE
1. List of witnesses examined on behalf of the plaintiff :
P.W.1 : Dr.K.H.Anasuya
P.W.2 : Dr.T.Kamalamma
2. The list of documents exhibited on behalf of plaintiff :
Ex.P. 1 : C/c of regd. Lease Cum Sale Agreement dated 3.3.1986 Ex.P.2 : C/c of regd. Sale Deed dated 29.11.1996 Ex.P.3 : C/c of regd. Gift Deed dated 7.7.2005 Ex.P.4 : Letter dated 27.3.2008 written by defendant Ex.P.5 to 25 : 21 LIC receipts Ex.P.26 : Letter addressed to defendant by Principal of JSS Medical College, Mysore Ex.P.27 : Admit Card dated 4.1.1998 Ex.P.28 : Admit Card dated 21.3.1999.
Ex.P.29 : Annual account statement of GPF pertains to plaintiff Ex.P.30 to 33 : 4 Statements of GPF account Ex.P.34 & 35 : 2 Receipts Ex.P.36 : Cash receipt issued by Passport authority.
/ 47 / O.S.No.4092/2015
Ex.P.37 : Receipt dated 23.4.1999
Ex.P.38 to 40 : 3 Counter foils of Indian Overseas Bank. Ex.P.41 to 45 : 5 receipts of Indian Overseas Bank Ex.P.46 to 48 : 3 counter foils of Canara Bank Ex.P.49 : Cheque list for housing loan issued by Canara Bank Ex.P.50 : ICICI Bank statement Ex.P.51 to 58 : 8 Cash Receipts.
Ex.P.59 : Passbook of SBM, Shivaratreshwara Nagar, Mysore pertains to defendant account.
3. The list of witnesses examined on behalf of defendants:
D.W.1 : Dr.M.Ramaiah.
4. The list of documents exhibited on behalf of the defendants :
Ex.D.1 & 2 : Copy of letters dated 29.6.1992 and 3.1.1987 written by plaintiff respectively Ex.D.1(a) &2(a): Signatures of plaintiff Ex.D.3 to 5 : 3 photographs.
Ex.D.6 to 16 : 11 Tax Paid Receipts.
Ex.D.17 : Invitation Card of house warming
ceremony of house constructed in schedule
property
Ex.D.18 : Special power of attorney.
Ex.D.19 : Letter written by Dr.N.Ramareddy.
Ex.D.20 : Letter issued by Royal College of Surgeons
of England.
/ 48 / O.S.No.4092/2015
Ex.D.21 : Certificate dated 21.11.2000
Ex.D.22 : Declaration for sponsoring family/visitors
Ex.D.23 : Letter of Medical Council of India.
Ex.D.24 : Letter of Karnataka Medical Council
Ex.D.25 : Letter dated 20.7.2001
Ex.D.26 to 28 : 3 Receipts
Ex.D.29 : Letter dated 12.2.1992
Ex.D.30 : Receipt.
Ex.D.31 : Letter dated 17.8.2016 from ICICI Bank
Ex.D.32 : Application dated 22.2.1999
Ex.D.33 : Receipt dated 23.7.2005
Ex.D.34 : Canara Bank passbook
Ex.D.35 : Certificate issued by SBI
Ex.D.36 : Cash Memo dated 6.4.2001
Ex.D.37 : Approved plan
Ex.D.38 : Invoice dated 27.7.2016
Ex.D.39 : Letter of Canara Bank dated 28.6.2017
Ex.D.40 : Bill dated 10.12.2007
Ex.D.41 : Tax invoice dated 30.10.2007
Ex.D.42 to 44 : 3 Receipts
Ex.D.45 to 48 : Form No.29 issued by Forest Department, Receipt, delivery Challan and Delivery Note.
Ex.D.49 : Letter of Canara Bank
Ex.D.50 : Articles of Agreement with interiors
Ex.D.51 : Application submitted by BWSSB
/ 49 / O.S.No.4092/2015
Ex.D.52 : Valuation Report
Ex.D.53 : Building Completion Certificate
Ex.D.54 : Purchase Order
Ex.D.55 : Sanction Letter from BWSSB
Ex.D.56 to 60 : 5 Tax Paid Receipts
Ex.D.61 & 62 : Challan & tax paid receipt
Ex.D.63 & 64 : Challan & tax paid receipt
Ex.D.65 to 69 : 5 Tax Paid Receipts
Ex.D.70 to 72 : 3 Rental Agreements.
Ex.D.73 : Medical Record File
Ex.D. 74 : 90 photographs.
Ex.D.75 : C.D.
(YASHAWANT R TAWARE),
XXXIX Addl. City Civil & Sessions Judge,
C/C of XL Addl. City Civil and Sessions Judge, Bangalore City.
/ 50 / O.S.No.4092/2015 Judgment pronounced in the open Court (Vide separate Judgment) :
ORDER The suit of the plaintiff is hereby dismissed. Under the circumstances of the case, the parties are directed to bear their own costs. Draw up decree accordingly.
(YASHAWANT R TAWARE), 39th ACC&S Judge, C/C of XL ACC&S Judge, Bengaluru. / 51 / O.S.No.4092/2015