Bangalore District Court
Smt.T.Savithri vs Sri.T.V.Sathyanarayana on 13 March, 2023
KABC010064132014
IN THE COURT OF THE XLIII ADDL. CITY CIVIL AND
SESSIONS JUDGE, AT BANGALORE(CCH.44)
PRESENT: SRI.MOHAMED ASHRAF ARIS, B.A.,LL.M.,
XLIII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
DATED THIS THE 13 TH DAY OF MARCH, 2023.
O.S.No.5521/2014
Plaintiff:- Smt.T.Savithri
aged about 60 years,
W/o.T.Guruvaiah,
Door No.14-6-14
Vinjamurivari Street,
Bapatla,
Guntur District-522101
Andhra Pradesh.
(By Sri.K.Sumar-advocate)
-vs-
Defendants:- 1. Sri.T.V.Sathyanarayana,
Aged bout 42 years,
S/o.T.Guruvaiah,
2 O.S.No.5521/2014
2. Smt.T.V.S.L.Sirisha,
Aged about 34 years,
W/o.Sri.T.V.Satyanarayana
both residing at
Door No.11-6-3,
Roopakulavari Street,
Government Hospital Road,
Bapatla,
Guntur District-522101
Andhra Pradesh.
(By Adinath Narde & Revathy
Associates advocates)
Date of Institution of the suit : 19.07.2014
Nature of the suit : Declaration & Injunction
Date of commencement of
recording of the evidence : 30.01.2019
Date on which the Judgment
was pronounced : 13.03.2023
Total Duration Years Months Days
: 08 05 22
(MOHAMED ASHRAF ARIS )
XLIII Addl. City Civil & Sessions Judge,
Bengaluru
3 O.S.No.5521/2014
JUDGMENT
This is a suit for cancellation of the Sale Deed, dated 30.07.2012 executed by the defendant No.1 on the basis of the disputed General power of attorney of the plaintiff in favour of the 2 nd defendant who is the wife of the 1 st defendant on the ground that it is illegal and vitiated by fraud and is null and void ab-initio and also to declare that the General power of attorney said to have been executed by the plaintiff in favour of the 1 st defendant in respect of the schedule property dated 07.12.2007 is vitiated by fraud and is null and void ab-initio and for a consequential relief to direct the Sub-Registrar concerned to effect entry in all the Registers and for a consequential relief of permanent injunction restraining the defendants, their men from alienating or encumbering or otherwise disposing of the schedule property.
4 O.S.No.5521/2014
2. The contention of the plaintiff in brief is as follows:-
The plaintiff is the mother of the 1 st defendant. The 2 nd defendant is the daughter-in-law of the 1 st plaintiff i.e., the wife of the 1 st defendant. The plaintiff is a housewife and she is also a partner in the partnership firm M/s.Sitaram Rice Mill. The said partnership firm was a family concern comprising of four partners i.e., the plaintiff, plaintiff's husband, the 1 st defendant and the younger son of plaintiff Sri.T. T.Hanumantha Rao i.e., her younger son. From out of her income, which the plaintiff had earned as a partner, the plaintiff paid the sale consideration to one Sri.Joshua Bhasme- and purchased the immovable property which is the western portion of site/plot bearing No.105, formed in converted lands in Sy.No.69, then bearing Bommanahalli Ngara Sabhe, khatha No.1888/69, measuring East to West: 29+28/2 and North 5 O.S.No.5521/2014 to South:46+47/2, totally measuring 1325.25 Sq.ft,. The same is more fully descried in the schedule property. The plaintiff had purchased the said property under the registered Sale Deed, dated 07.12.2007 by paying the full consideration. The plaintiff is an Income Tax assessee and the payment of sale consideration including the registration charges etc., totally Rs.20,02,350/- has been reflected in her ledger account for the period from 01.04.2007 to 31.03.2008. When the schedule property was purchased by the plaintiff, at the same time the 1 st defendant purchased the eastern portion of the very same property bearing No.105 and the remaining portion of the said property was purchased by the 2 nd defendant. Thus the entire property bearing No.105 was purchased by the plaintiff and defendants herein. The plaintiff purchased the schedule property from out of her income as was desired by herself and her husband so as to keep this property for their own 6 O.S.No.5521/2014 use and thereafter to sell the same to any person of their choice as and when they were in need of funds, as an investment in landed property at Bengaluru would yield higher returns. The purchase of the schedule property was an investment proposition and as far as the plaintiff and her husband are concerned, investment was for the benefit in as much as both the plaintiff and her husband as parents have provided enough and more to their elder son i.e., the 1 st defendant than to even to their younger son. The 1 st defendant after his marriage was residing earlier in the same house along with the plaintiff and her husband.
However later, the 1 st defendant and his wife started misbehaving which led to the plaintiff and her husband shifting to the present residence. The 1 st defendant had virtually taken over the affairs of the 'M/s.Seetharam Rice Mill' by misusing his authority as its Managing Partner. When the plaintiff's husband went to America with plaintiff 7 O.S.No.5521/2014 to join their second son, apart from he misusing the funds of said Rice Mill, which ultimately led to the Rice Mill being closed., the plaintiff's husband primarily on account of the defaults committed by the 1 st defendant, had to take huge loans. Under the circumstances, the plaintiff was desirous of selling the schedule property so as to get some income and repay the loans taken by her husband. In this regard advertisements were given by the plaintiff through her husband and younger son in various newspapers in the year 2012 and 2013. The plaintiff in the meanwhile had also paid taxes to the BBMP after the same came under the jurisdiction of BBMP on 03.09.2012. In the month of January 2013, the plaintiff's husband and her younger son came to Bengaluru to sell the schedule property to a prospective buyer. As the purchaser insisted on a Nil encumbrance certificate for the said property, the plaintiff's son applied for the same from the year 2004 upto date i.e., 8 O.S.No.5521/2014 till 09.01.2013 and to the utter shock and dismay of the plaintiff's husband and the younger son, they noticed that in respect of the schedule property, there was an entry in the encumbrance certificate to the effect that the schedule property has been sold by the plaintiff to the 2 nd defendant through her so called GPA- the 1 st defendant that too in the office of the Sub-Registrar, Shanthinagar and not at the office of the Sub-Registrar, Bommanahalli. The plaintiff was informed of this fact which news came as a rude blow to the plaintiff in as much as ot her knowledge. She has not executed any GPA in favour of the 1 st defendant in respect of the schedule property for any reason whatsoever, let alone for the purpose of selling the schedule property. If at all the plaintiff desired to sell the property to the 2 nd defendant or even to the 1 st defendant, she would have done so naturally by herself. There was absolutely no need for the plaintiff to have executed any 9 O.S.No.5521/2014 such power of attorney in favour of the defendant No.1 so as to enable the 1 st defendant to sell her property to the 2 nd defendant. When plaintiff and her husband questioned the 1 st defendant as to how he managed to get a GPA executed by the plaintiff in his favour, there was absolutely no answer and the 1 st defendant defiantly threatened the plaintiff and her husband to do whatever they wanted. Both the defendants have conspired together and played an act of gross fraud and treachery on the plaintiff by grossly misusing the faith reposed by the plaintiff on the 1 st defendant. By playing fraud on the plaintiff and in utter criminal breach of trust the 1 st defendant obtained an illegal GPA executed by the plaintiff in favour of the 1 st defendant whereunder the 1 st defendant has been empowered to execute and register any agreement or Sale Deed in respect of the schedule property or sell the schedule property in favour of any third parties without 10 O.S.No.5521/2014 reference to the plaintiff. On request the 1 st defendant provided the plaintiff with copies of the two documents and upon perusal of the documents the plaintiff was shocked to notice that in the Sale Deed, dated 30.07.2012 it is made to appear as if the schedule property was sold by the plaintiff through the GPA holder-1st defendant to the 2 nd defendant for a sale consideration of Rs.22,60,000/- which is said to be paid as under:-
a) Rs.18,00,000/- by way of Promissory Note, dated 30.07.2012 and
b) Rs.4,50,000/- by way of cash.
A cursory reading of the recitals of the Sale Deed, dated 30.07.2012 and the manner in which the sale consideration is said to have been paid by the purchaser i.e., the 2 nd defendant itself indicates the blatant fraud played by the defendants 1 and 2 in collusion with one another on the plaintiff. The plaintiff has not received any amount towards sale consideration from the 2 nd defendant 11 O.S.No.5521/2014 let alone Rs.4,50,000/- by cash as reflected in that Sale Deed. As far as the Promissory Note dated 30.07.2012 is concerned, the plaintiff has not even had a glimpse of the same. The very fact that the recitals in the Sale Deed, do not mention as to how or in whose name the Promissory Note dated 30.07.2012 has been executed and by whom is itself indicative of the deceit and fraud played by the defendants. This illegal Sale Deed, dated 30.07.2012 has been executed by the 1 st defendant as the so called GPA holder of the plaintiff only on the basis of a registered document dated 07.12.2007 purported to have been a GPA said to have been executed by the plaintiff in favour of the 1 st defendant. The plaintiff has never been informed of the fact that she is executing any such GPA in favour of the 1 st defendant so much so the plaintiff never had any intention of appointing the 1 st defendant as her GPA holder. The plaintiff did not want to sell the property at that point of 12 O.S.No.5521/2014 time and had purchased the property as an investment to be held by the plaintiff and her husband and thereafter to be sold at any given point of time whenever they needed money or when the return was lucrative. The 1 st defendant had evidently played a confidence trick on the plaintiff by making her sign documents by misleading the plaintiff and making it appear as if she was signing these documents only for the purpose of purchasing the schedule property. The plaintiff has now realised that while signing the Sale Deed, dated 07.12.2007 executed by Sri.Joshua Bhasme in her favour she has signed this Sale Deed and various other forms and documents in her capacity as the purchaser of the schedule property. At that time, the 1 st defendant has fraudulently got her to also sign this document which is prepared by the 1 st defendant i.e., GPA and thereafter got both these documents registered one after the other. The plaintiff sat before the Sub-Registrar concerned officer for 13 O.S.No.5521/2014 being photographed and for her thumb mark being taken electronically on 07.12.2007 at 4:17:02 p.m in respect of the Sale Deed and immediately thereafter she has been tricked by the 1 st defendant thereafter to again present herself for being photographed before the concerned officer and for the electronic capturing of her left thumb mark on 07.12.2007 at 4:52:32 p.m i.e., within a span of about half an hour by making it appear as if this formality was also a part of the process pertaining to the registration of the Sale Deed and thereby the 1 st defendant by playing fraud on the plaintiff has got illegal GPA executed in his favour on that very day. Infact the plaintiff is not worldly wise and she is a house wife. Though she is a partner of the firm and an I.T. Assessee, she is always helped and guided by her husband. On 07.12.2007 she had reached Bengaluru accompanied by the defendants only, as all the three were purchasing the entirety of the said plot No.105. The 14 O.S.No.5521/2014 plaintiff's husband believing that his son/the 1 st defendant would protect the interests of his mother, the plaintiff's husband did not accompany her to Bengaluru. Similarly her younger son also could not be at Bengaluru with her as he was in Chennai and was pre-occupied at that time. Thus the plaintiff has been grossly betrayed by the 1 st defendant in whom the plaintiff had reposed faith and confidence. The plaintiff infact has filed the suit after she has been explained the contents of the plaint in Telugu language by her younger son. The GPA dated 07.12.2007 is not merely a product of confidence trick, treachery, criminal breach of trust but also a product of criminal conspiracy which the 1 st defendant had entered into with his wife-the 2 nd defendant at that point of time itself, so as to cheat the plaintiff of her schedule property. While plaintiff could have even filed criminal case against the 1 st defendant and his wife for their illegal criminal acts, she 15 O.S.No.5521/2014 does not want to send her son and daughter-in-law to the jail. Infact, the plaintiff and her husband advised the defendants to undo the injustice already done to the plaintiff and her husband by the defendants and to reconvey/retransfer the schedule property in the name of the plaintiff. The 1 st defendant was adamant and defiant and later he started giving false assurances to the plaintiff and her husband that he will do something in the matter which would alleviate the suffering of the plaintiff and her husband who were in dire need of funds. However, the defendants have done nothing till the date of filing of the suit. The plaintiff continues to remain in lawful possession and enjoyment of the schedule property and it is her absolute property . Hence the suit.
3. The defendants 1 and 2 have filed their common written statement. Their contentions in brief are as follows:-
16 O.S.No.5521/2014
It is admitted that the firm is a partnership firm which was a family concern and that it is registered one and the 1 st defendant is one of the partners of the firm. The 1 st defendant entered into an agreement of sale with Joshua Bhasme- the vendor on 07.11.2007 and paid a sum of Rs.One lakh by cash and Rs.25 lakhs by way of MRTS as an advance sale consideration which was acknowledged by the vendor, in furtherence to that an amount of Rs.15,00,000/- by cash was paid on 06.12.2007 for the purchase of the larger portion of the schedule property totally measuring 3455.6 Sq.ft,. The money transaction was done by the 1 st defendant which he has earned it exclusively in running the rice mill for the partnership firm although as per the partnership deed the working partners are paid remuneration on the book of profits and the profit and losses are shared proportionately and she is entitled for 0.40 as against the 1 st defendant who is entitled for 0.25. 17 O.S.No.5521/2014 The plaintiff is aware that the M/s.Seetharam Rice Mill was exclusively taken care by the 1 st defendant in exclusion to other partners and was running in profit. The plaintiff due to love and affection expressed to share her profits in the mill and extended the same by buying the suit schedule property, although the sale consideration was paid by her to one Sri Joshua Bhasme - the vendor and purchased the immovable property being western portion of the site/plot bearing No.105, formed in converted lands in Sy.No.69 totally measuring 1325.25 Sq.ft, She immediately executed a registered GPA in favour of the 1 st defendant. The 1 st defendant has taken care of the property and has paid tax to BBMP on behalf of the plaintiff. It is true that the entire property bearing No.105 was purchased by the plaintiff and the two defendants, but the entire sale consideration is paid by the 1 st defendant through MRTS from the account of M/s. Seetharam Rice Mill and cash which is the hard 18 O.S.No.5521/2014 earned money of the 1 st defendant. The 1 st defendant has exclusively taken care of the partnership firm and he shared his hard earned money with the plaintiff for the act of which out of sentiments the plaintiff want to do investment in the name of the 1 st defendant as the 2 nd son of the plaintiff was earning his share of profits without any contribution and he is working in TCS company since 1999. It is not true that the property was purchased for an investment proposition by the plaintiff. In that case, the plaintiff would not have registered the GPA in favour of the 1 st defendant. The 2 nd defendant got married to the 1 st defendant on 09.08.1997 and was staying peacefully as a family with the plaintiff although lot of disturbance was created by the daughter and son-in-law of the plaintiff. The plaintiff went for her US trip from 23.03.2009 to 07.07.2009 to visit her 2 nd son and on return stayed in the same house along with the 2 nd defendant and built her 19 O.S.No.5521/2014 new house on 07.06.2010 and shifted. The allegations that the 1 st defendant closed down M/s.Seetharam Rice Mill is hereby denied as the plaintiff immediately built a new house who is flushed with funds and not desperate as pleaded. The plaintiff has pleaded in an imaginary way without any facts and figures and the plaintiff's allegation that the rice mill came to a closer by the misuse of funds by the 1 st defendant is denied. The plaintiff's husband who was equally authorised to raise the funds against the rice mill have raised enormous loans towards building the house and not accounted for the same and misused the same which led to the closer of the rice mill. The books of account will reveal the truth regarding the closer of the mill. The plaintiff expressed her desire to give the property to the 1 st defendant and also permitted him to register it in the name of 2 nd defendant but to his surprise she gave paper advertisement under the influence of 20 O.S.No.5521/2014 younger son, daughter and son-in-law on 07.04.2021 in 'The Hindu' paper regarding the sale of the schedule property. Hence by the time he came to know about the advertisement he has already registered the property in favour of the 2 nd defendant by virtue of the registered GPA given by the plaintiff and consideration was paid partly by cash and partly by promissory note. The plaintiff is disputing the registered GPA which was done with her concurrence and knowledge and the purpose of issuing the said GPA was explained to her and accepted by her, the sale and registration of GPA was done together before the Sub-Registrar where she herself was part of it. The plaintiff was aware of the fact that the entire sale consideration was paid by the 1 st defendant out of Seetharam Rice Mill's account which is his hard earned money. If the defendants had played any fraud for criminal breach of trust the plaintiff should have lodged a 21 O.S.No.5521/2014 police complaint which she has not done and which shows that the allegation is an afterthought to defeat the purpose of GPA. The plaintiff accepts the fact that she is partner in the partnership firm and IT assessee and also visited foreign countries and educated enough to understand her acts having been given a registered GPA in the name of the 1 st defendant is now estopped from taking the stand that it is GPA obtained by fraud, more so she could have initiated legal proceedings as claimed by her against the 1 st and 2 nd defendants which she did not initiate which clearly indicates her frame of mind. Hence prays to dismiss the suit.
4. This court framed the following issue:-
1. Whether the plaintiff proves that the Sale Deed dated 30.07.2012 executed by plaintiff represented by 1 st defendant as General power of attorney holder of the plaintiff in favour of 2 nd defendant in respect of suit schedule property, in the office of the Sub-Registrar, Bommanahalli, as No.SHR-1-00838-201- 22 O.S.No.5521/2014 13 in Book No.1, stored in CD No.SHRD 22 dated 30.07.2012 is illegal and vitiated by fraud and null and void?
2. Whether plaintiff proves that the General power of attorney said to have been executed by the plaintiff in favour of 1 st defendant in respect of schedule property which is registered in the Office of the Sub-Registrar, Bommanahalli, Bengaluru as No.BMH-4-
00376-2007-08 in book IV stores in CD No.BMHD 336 dated 07.12.2007 is vitiated by fraud and is null and void?
3. What the plaintiff proves her lawful possession over the suit schedule property?
4. Whether defendants 1 and 2 prove that the plaintiff has filed this suit frivolously by misleading the statements which is illegal and questionable in the eye of law as alleged in para-10 of the written statement?
5. Whether plaintiff is entitled for the relief sought for?
6. What order or decree?
23 O.S.No.5521/2014
5. Plaintiff herself got examined as P.W.1 and husband of plaintiff T.Guruvaiah is examined as P.W.2. Ex.P1 to Ex.P14 are got marked. Defendant No.2 examined as D.W.1. Ex.D1 to Ex.D4 are marked.
6. Heard both sides.
7. The findings on the aforesaid issues are as follows:-
Issue No.1: In the Affirmative Issue No.2: In the Affirmative Issue No.3: In the Affirmative Issue No.4: In the Negative Issue No.5: In the Affirmative Issue No.6: As per final order for the following:-
REASONS
8. Issue No.1 to 3 :- These issues are taken up together since they are interconnected and will avoid repetition of facts.
24 O.S.No.5521/2014
9. The relationship between the parties is not disputed. The plaintiff is the mother of defendant No.1. defendant No.2 is the wife of defendant No.1. Plaintiff has another son who is younger to defendant No.1 and his name is Hanumantha Rao. Plaintiff's husband's name is Guruvaiah and he has been examined as P.W.2 in this case.
10. The plaintiff, the plaintiff's husband, the defendant No.1 and another son of the plaintiff are the partners of M/s. Seetharam Rice Mill which is a business partnership carrying on the business in milling paddy, selling rice and buying its by products. It is situated in Guntur District, Andhara Pradesh. The plaintiff and her younger son Hanumantha Rao are sleeping partners of this partnership firm. Whereas the defendant No.1 and the plaintiff's husband are the Managing partners. These facts have not been disputed.
25 O.S.No.5521/2014
11. In the year 2007, portions of plot No.105 of Bommanahalli in converted land Sy.No.69 were purchased by plaintiff, defendant No.1 and defendant No.2 through separate Sale Deeds from its owner Josha Bhasme. The western most portion is the suit schedule property which is purchased by the plaintiff as per registered Sale Deed, dated 07.11.2007. The original Sale Deed, is marked as Ex.P9. This Sale Deed is in the name of the plaintiff and is not in dispute. However, the defendants contend that though it was purchased in the name of the plaintiff, the amount was invested by the 1 st defendant.
12. The plaintiff, plaintiff's husband, the defendant No.1 and defendant No.2 were living together . Thereafter there were some misunderstanding and the plaintiff along with her husband-P.W.2 started residing separately somewhere in the year 2010.
26 O.S.No.5521/2014
13. The crux of this dispute is regarding the execution of the disputed GPA said to be executed by the plaintiff in favour of defendant No.1 on 07.12.2007 on the very same day when the property was purchased in the name of the plaintiff. On the basis of the disputed GPA- Ex.P3, the defendant No.1 has executed a Sale Deed in favour of his wife defendant No.2 in respect of the suit property on 30.07.2012. The certified copy of the said GPA is marked as Ex.P3 and the certified copy of the Sale Deed, dated 30.07.2012 is marked as Ex.P4. The plaintiff contends that she was not aware of taking her signature in the GPA and that she has not executed GPA in favour of defendant No.1 authorising the defendant No.1 to sell the suit schedule property. The plaintiff contends that defendant No.1 and 2 have played a confidence trick on her by misleading her and obtained her signature in GPA- Ex.P3, on the very same day when the Ex.P9- Sale Deed 27 O.S.No.5521/2014 was executed before the Sub-Registrar's office without informing her about any GPA. The defendants contend that since the investment for purchase of the suit schedule property in the name of plaintiff was made by 1 st defendant, the plaintiff voluntarily has executed the GPA in favour of 1 st defendant. This is denied by the plaintiff and the plaintiff has stated that she came to know about this GPA only in the year 2013 when plaintiff's husband and her younger son informed about the same. The plaintiff contends that plaintiff's husband and her younger son Hanumantha Rao came to Bengaluru to sell the suit schedule property to a prospective buyer in the year 2013 and that they were shocked to find out that the defendant No.1 has executed a Sale Deed in favour of defendant No.2 on the basis a GPA said to be executed by the plaintiff.
14. The plaintiff in order to show that the suit schedule property was purchased by her own income and 28 O.S.No.5521/2014 not from the income of 1 st defendant, the plaintiff has given oral evidence as well as produced the ledger account Ex.P14 pertaining to the plaintiff, which shows that on 07.12.2007 a sum of Rs.20,02,350 has been debited and there is an endorsement stating that it is towards the purchase of the land in Bengaluru. This is a clinching evidence to show that the plaintiff had her own income to purchase the suit schedule property and it was not purchased by the 1 st defendant by investing his hard earned money, or with any financial assistance of the 1 st defendant. Plaintiff has also produced the Income Tax return, the statement of Income and the Balance Sheet which are marked as Ex.P10 to Ex.P12. These documents supports the contention of the plaintiff. Even the defendant No.2 who has been examined as D.W.2 has admitted in her cross-examination that the said amount has been debited towards the consideration amount in respect 29 O.S.No.5521/2014 of Ex.P9- Sale Deed. The defendants have not produced any other evidence to show anything contrary to this evidence. Therefore, the plaintiff has been able to show that the plaintiff has invested the money for purchase of the suit schedule property as per Ex.P9.
15. The next important point to be considered is whether defendant No.2 has paid the sale consideration to the plaintiff towards the execution of the disputed Sale Deed- Ex.P4, executed by defendant No.1 as a GPA holder of the plaintiff on the basis of the disputed GPA- Ex.P3. The defendants have contended that the consideration amount has been paid to the plaintiff. In the written statement it has been pleaded that the plaintiff expressed her desire to give property to the 1 st defendant and also permitted him to register it in the name of the 2 nd defendant. There is no mention of the passing of consideration in respect of the Sale Deed executed in 30 O.S.No.5521/2014 favour of the defendant No.2. In the evidence of D.W.1 i.e., defendant No.2 in the chief-examination he has stated that the plaintiff expressed her desire to give her property to defendant No.1 and executed a registered GPA in favour of defendant No.1 to look after the suit schedule property and also power to sell the suit property and in exercise of power given by the plaintiff the defendant No.1 has sold the suit schedule property in favour of defendant No.2 under the registered Sale Deed, dated 30.07.2012 for a valuable consideration of Rs.22,60,000/-. In the said Sale Deed i.e., Ex.P4 it is stated that the sale consideration of Rs.22,60,000/- has been paid as under:-
(a) Rs.18,00,000/- by way Promissory Note dated 30.07.2012 and
(b) Rs.4,50,000/- by way of cash.
In the cross-examination D.W.1 has stated at para-10 that she paid the sale consideration amount shown in Ex.P4 after two days of execution of the Sale Deed. Whereas in 31 O.S.No.5521/2014 page No.11 in the cross-examination she has stated that three days after the registration of the demand promissory note, she delivered the said Demand Promissory Note to her mother-in-law in Bapatla and that the consideration amount is shown in Ex.P4 was paid by hard cash along with demand promissory note. She has stated that her husband and some other persons were attesting witnesses to the promissory note. However, no such promissory note is produced, nor any documents are produced in support of such contention. The plaintiff has denied having received any consideration in respect of Ex.P4. D.W.1 herself has admitted that she has no proof whatsoever to show that she has paid any consideration to the plaintiff in respect of Ex.P4. There is also no pleading in respect of this promissory note and payment of consideration by the defendants.
32 O.S.No.5521/2014
16. The defendants have not been able to place any evidence to show that consideration amount has been paid as per Sale Deed Ex.P4 to the plaintiff. If at all the plaintiff had any intention of giving the said suit property to the defendant No.2, the plaintiff could have executed a Gift Deed. The plaintiff infact wanted to sell the suit schedule property for her and her husband's financial necessity and had got issued a paper publication in the year 2012. Same has been admitted in the written statement at para-6. However, the defendant contends that before coming to know about the advertisement defendant No.1 had already registered the property in favour of the 2 nd defendant. But the fact that the paper publication has been made shows that the plaintiff was not aware of the execution of any GPA in favour of defendant No.1 and it also shows that she had no intention of giving the property to the defendant No.2. It is a fact that the plaintiff only 33 O.S.No.5521/2014 knows Telugu language and that she takes the assistance of her husband in dealing with property and financial matters. It is a fact that on the date of execution of the Sale Deed- Ex.P9 which was purchased in the name of the plaintiff, she had gone to the Sub-Registrar's office along with the 1 st defendant. The Sale Deed- Ex.P9 was registered at 4.17 p.m. and the disputed GPA has been registered on the same day at 4.52 p.m. It is highly probable that the plaintiff has put her signature thinking that it is part of the process of the Sale Deed. The facts and circumstances of this case, the inconsistent pleas taken by the defendants and the lack of reliable evidence on behalf of the defendants shows that the plaintiff has been misled and the GPA has been obtained without giving proper information and by misleading the plaintiff. The plaintiff has stated that the possession is still with the plaintiff and this is not disputed by D.W.1 in her cross-examination. The defendant No.1 34 O.S.No.5521/2014 did not step into the witness box. He would have been the proper person to explain the inconsistencies and also to speak about the promissory note. The defendant No.2 in her cross-examination has stated that defendant No.1 has signed the promissory note. Hence non-examination of defendant No.1 is fatal to the case of the defendants.
17. The plaintiff has pleaded that defendant No.2 had no capacity to pay the consideration amount and that there was no passing of consideration in respect of Ex.P4. Inspite of that the defendants have not made any efforts to show or place any evidence to show that passing of consideration and the earning capacity of the defendant No.2. Infact defendant No.2 i.e., D.W.1 in her cross- examination has stated that she had no avocation since her marriage. Therefore, the evidence placed in this case shows that there is no passing of consideration in respect of Ex.P4- Sale Deed. When there is no passing of 35 O.S.No.5521/2014 consideration, then the Sale Deed itself becomes void. Even the witnesses to the Sale Deed are not examined. Further it is not the case of the defendants that out of love and affection the said deed was executed. Hence the contention of the plaintiff that there is no passing of consideration is probable.
18. Merely because the plaintiff has not given any police complaint regarding the fraud played by the defendants, it cannot be said that the transaction is valid. The defendant No.1 is none other than the son of the plaintiff and naturally there will be some sympathy towards defendant No.1 and she would not like to see her son go behind the bars. Further the defendants' counsel had argued that if at all defendant No.1 wanted to cheat, he could have done it five years earlier itself and there was no necessity to wait for five years from 2007 to 2012. However, this is not a ground to disbelieve the contention 36 O.S.No.5521/2014 of the plaintiff. On the other hand, the plaintiff has contended that if she wanted to give the property to the defendant No.2 she could have given it in th year 2007 itself and there was not necessity to execute any GPA. Hence the contention of the defendants cannot be accepted. Counsel for defendants have relied on a decision reported in 2021 SCC Online SC 842 (Placido Francisco Pinto (D) by L.Rs Vs. Jose Francisco) and contended that there is absence of plea of fraud. However, in the case on hand the plaint shows that the necessary details of fraud and misrepresentation and the confidential trick played by the defendants are clearly pleaded and hence the principles laid down in the aforesaid decision are not applicable to the case on hand. The defendants counsel has pointed out two suggestions made to P.W.2 in the cross-examination at page-12 and 13 and has reproduced the same in paras of the written arguments. Those suggestions must have been 37 O.S.No.5521/2014 wrongly typed. If those suggestions are taken into consideration, it would go against the defendants case itself, as suggestions are nothing but the admitted facts put by the party putting such suggestions.
19. The counsel for the defendants has relied on a decision reported in Hon'ble High Court of Karnataka in ILR 2019 KAR 1179 between Smt.Venkatamma Vs. B.S.Suryaprakash and contended that the execution of power of attorney cannot be disbelieved when it is validly executed and once a power of attorney is validly executed presumption has to be drawn u/s.85 of the Evidence Act. However in the case on hand, the plaintiff has been able to show as to how the plaintiff was tricked and the contention of the plaintiff is more probable and the presumption is rebutted. Therefore, the aforesaid decision is not applicable to the case on hand.
38 O.S.No.5521/2014
20. The counsel for the defendants has also relied on a decision of the Hon'ble High Court reported in AIR 1961 Mys. 878 (Gurubasappa Vs. Gurulingappa) wherein it has been held that intention must be gathered from the document itself in the 1 st place and when the words are express and clear no oral evidence could be admitted in evidence to vary or contradict its terms. However, in the case on hand the plaintiff have been able to show that there is no passing of consideration and when such a plea is taken, it was the responsibility and the burden of the defendants to show that there is passing of consideration. In this regard, the plaintiff's counsel has relied on a decision of Hon'ble Apex court reported in 2021 SCC Online SC 1097 (Kewal Krishna Vs. Rajesh Kumar) wherein it has been held that when it is the specific case of the plaintiffs that the Sale Deed is void for want of consideration and lack of earning capacity, it is burden of the other party to 39 O.S.No.5521/2014 show payment and consideration and the earning capacity. The said decision is aptly applicable to the case on hand.
21. The defendants have contended that the plaintiff is acting under the influence of her husband and is now denying the execution of GPA. However, there is nothing to substantiate this. Plaintiff's husband has been examined as P.W.2 and has corroborated the evidence of the plaintiff. Plaintiff was taking assistance of her husband as she was knowing only Telugu language. So far as husband and wife is concerned, there is an implied agency as provided under Sec.18 of the Indian Contract Act.
22. For the aforesaid reasons, this court is of the opinion that the plaintiff has been able to prove that she has been tricked in getting her signature in the GPA and there was no passing of consideration in respect of the Sale Deed dated 30.07.2012 and therefore, issues No.1 and 2 are answered in the Affirmative. So far as issue No.3 is 40 O.S.No.5521/2014 concerned, the plaintiff has pleaded and deposes that she is in possession. The same has not been specifically denied by the defendants. Defendant No.2 has also not deneid the same in the cross-examination. Therefore, issue No.3 is also answered in the 'Affirmative'.
23. Issue Nos. 4 and 5:- Since the plaintiff has been able to prove issues No.1 to 3, the plaintiff is entitled for the relief of declaration as prayed for and also for consequential reliefs.
24. The defendants have failed to show that the plaint has been filed by misleading statement etc., as contended in para-10 of the written statement.
25. For the aforesaid reasons the issue No.4 is answered in the 'Negative' and issue No.5 is answered in the 'Affirmative'.
26. issue No.5:- In the result the following order is passed:-
41 O.S.No.5521/2014
ORDER The suit is decreed with costs.
It is hereby declared that the Sale Deed, dated 30.07.2012 registered in the Office of the Sub-Registrar, Bommanahalli as SHR-1- 00838-2012-13 in Book I and stored in CD No.SHR 22 dated 30.07.2012 is null and void ab-initio and the same is liable to be cancelled.
It is further declared that the General Power of attorney registered in the office of the Sub-Registrar, Bommanahalli as BMH-4- 00376-2007-08 in Book IV and stored in CD No.BMHD 336 dated 07.12.2007 is null and void ab-initio.42 O.S.No.5521/2014
The Sub-Registrar concerned shall effect necessary entries in the Registers concerned after the period of the appeal.
The defendants are restrained by way of permanent injunction from alienating, encumbering or otherwise disposing of the schedule property or any portion thereof.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 13th day of March, 2023.) (MOHAMED ASHRAF ARIS ) XLIII Addl. City Civil & Sessions Judge, Bengaluru ANNEXURE I. List of witnesses examined on behalf of plaintiff-
P.W.1 Smt.T.Savithri
P.W.2 Sri.T.Guruvaiah
43 O.S.No.5521/2014
II. List of witnesses examined on behalf of defendants-
P.W.1 Smt.T.V.S.L.Sirisha
III. List of documents exhibited on behalf of plaintiff-
Ex.P1: Encumbrance certificate
Ex.P2: Encumbrance certificate
Ex.P3: Certified copy of GPA dated 07.12.2007
Ex.P4: Certified copy of Sale Deed, dated
30.7.2012
Ex.P5: Tax paid receipt
Ex.P6: Tax paid receipt
Ex.P7: Tax paid receipt
Ex.P8: Tax paid receipt
Ex.P9: Sale Deed dated 07.12.2007
Ex.P10: Acknowledgment issued by Income Tax department Ex.P11: Statement of account Ex.P12: Balance sheet Ex.P13 Interest received entry shown in ledger account Ex.P14: Extract of Ledger account IV. List of documents exhibited on behalf of defendants-
Ex.D1: Registered power of attorney
Ex.D2: Registered Sale Deed, dated 30.07.2012
Ex.D3: Property Register
Ex.D4: Property Register
(MOHAMED ASHRAF ARIS)
XLIII Addl.City Civil & Sessions Judge, Bengaluru 44 O.S.No.5521/2014 Judgment pronounced in open court (vide separate order) ORDER The suit is decreed with costs.
It is hereby declared that the Sale Deed, dated 30.07.2012 registered in the Office of the Sub-Registrar, Bommanahalli as SHR-1-00838-2012-13 in Book I and stored in CD No.SHR 22 dated 30.07.2012 is null and void ab-initio and the same is liable to be cancelled.
It is further declared that
the General Power of attorney
registered in the office of the
Sub-Registrar, Bommanahalli as
BMH-4-00376-2007-08 in Book
IV and stored in CD No.BMHD
336 dated 07.12.2007 is null
and void ab-initio.
45 O.S.No.5521/2014
The Sub-Registrar
concerned shall effect necessary
entries in the Registers
concerned after the period of
the appeal.
The defendants are
restrained by way of permanent
injunction from alienating,
encumbering or otherwise
disposing of the schedule
property or any portion thereof.
Draw decree accordingly.
(Mohamed Ashraf Aris)
XLIII ACC&SJ, Bengaluru.