Bangalore District Court
In Os : N.Bhaskar Rao vs In Os : 1 Smt.Nilima on 26 August, 2020
O.S.216/2007 C/w 331/2006
1
THE COURT OF THE LXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-62)
Dated this the 26 th day of August, 2020
PRESENT :- SRI S.R.MANIKYA., B.Sc., LL.B.,
LXI Addl. City Civil & Sessions Judge,
Bangaluru City.
ORIGINAL SUIT NO.216/2007 C/w. 331/2006
Plaintiff/s in OS : N.Bhaskar Rao
No.216/2007 S/o.Late N.Ganapath Rao
Aged about 79 years
R/a.No.47/1-A,
Saphalya, Ground Floor
13th Cross, 8th Main,
Malleshwaram
Bengaluru-560 055.
Since deceased
Now rep. by his LRS
1 N.Guruprasad
Aged about 53 years
S/o.Late Sri N.Bhaskar Rao
R/a.No.47/1-A
Saphalya, 13th Cross, 8th Main,
Malleshwaram
Bengaluru-560 003.
2 N.Ashwin
Aged about 46 years
S/o.Sri N.Bhaskar Rao
R/a.Mason Nest, 2nd Floor
13th Cross, 6th main,
Malleshwaram
Bengaluru-560 003.
(By Sri.N.Mahalinga Bhat,
Advocate)
V/s.
Defendant/s in OS : 1 Smt.Nilima
O.S.216/2007 C/w 331/2006
2
No.216/2007 W/o.Nikhil Ubhayakar
Aged about 50 years
R/a.Cottage No.3
Panduranga Ashram
19th Cross, 8th Main,
Malleshwaram
Bengaluru-560 055.
(By Sri.N.Shankaranarayan
Bhat, Advocate)
Plaintiff/s in OS : Mr.N.Guruprasad
No.331/2006 S/o.N.Bhaskar Rao
Hindu
Aged about 47 years
R/a.No.47/1A, Sathalya
Ground Floor, 13thCross, 8th
main, Malleshwaram,
Bengaluru-560 003.
(By Sri.N.Mahalinga Bhat,
Advocate)
V/s.
Defendant/s in OS : 1. Mr.N.Bhaskar Rao
No.331/2006 S/o.Late N.Ganapth Rao
Hindu
Aged about 70 years
R/a.No.47/1A, Sapthalya
Ground Floor, 13th A Cross,
8th Main, Malleshwaram,
Bengaluru-560003.
2. Ashwin.N.
S/o.Bhaskar Rao
Hindu
Aged about 45 years
R/a.Mason Nest, 2nd Floor, 13th
Cross,6th main, Malleshwaram,
Bengaluru-560 003.
(By Sri. Bharth Kumar Mehatha
& Ramesh, Advocate)
3. Nilima
W/o.Nikhil Ubhayakar
Aged about 50 years
Hindu
O.S.216/2007 C/w 331/2006
3
Cottoage No.3,
Panduranga Ashram
8thMain, Malleshwaram
Bengaluru-560 003.
(By Sri. Shankaranarayana
Bhat, Advocate)
Date of institution
of the suit OS 216/07 : 23.12.2006
Date of institution
of the suit OS 331/2006 : 10.01.2006
Nature of the suit
[suit on pronote, suit
for declaration and
possession, suit
for injunction]
OS No.216/2007 : Declaration and Injunction
Nature of the suit
[suit on pronote, suit
for declaration and
possession, suit
for injunction]
OS No.331/2006 : Partition
Date of the commencement
of recording of the evidence
in OS No.216/2007 : 09.07.2008
Date of the commencement
of recording of the evidence
in OS No.331/2006 : 26.11.2009
Date on which the common
Judgment was pronounced : 26.11.2020
Year/s Month/s Day/s
Total Duration : -xx- -xx- -xx-
JU DG M E NT
Both the suits i.e., OS No.216/2007 and Os No.331/2006
O.S.216/2007 C/w 331/2006
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have been clubbed together and tired jointly. Hence, common
judgment is passed by considering issues of both the cases
together and the original judgment is kept in OS No.221/2007
and copy of the same is placed in OS No.331/2006.
2. The suit in OS No.216/2007 is filed by the plaintiffs for
the relief of declaration and consequential injunction by the
plaintiffs against the defendant claiming to declare the gift deed
dated 24.11.2001 is not binding on the plaintiff and also to
declare the further Consequential Act of transfer of khatha in
respect of the suit schedule property in favour of the defendant is
illegal and improper and also to restrain the defendant from
interference with the peaceful possession and enjoyment of the
suit schedule property.
3. The suit in OS No.331/2006 is filed by the plaintiff for
the relief of partition and separate possession of 1/4th share in
the suit schedule property and it is also claimed that in the event
of Court come to the conclusion that partition cannot be effected
in the alternative, the order for sale of the suit schedule property
and distribute the amount between the parties and also claiming
the relief of injunction against the 3 rd defendant not to create any
encumbrance on the property.
SCHEDULE IN OS NO.216/2007
All the piece and parcel of land bearing site No.47/1A (a
portion of site bearing Old No.440) 13 th Cross, Malleshwaram,
Corp. Ward No.7, Bengaluru-560 004 measuring East to West 43
feet and North to South 62 feet, bounded on the East by : Site
No.41/2, West by Property No.47/1, North by : Main Bld. In
premises No.41 and South by 13th Cross Road.
O.S.216/2007 C/w 331/2006
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SCHEDULE IN OS NO.331/2006
All that piece and parcel of land bearing site No.47/1A (a
portion of site bearing Old No.440) 13 th Cross, Malleshwaram,
Corp. Ward No.7, Bengaluru-560 003, measuring East to West 43
feet and North to South 62 feet, bounded on the East by : Site
No.41/2, West by Property No.47/1, North by : Main Bld. in
premises No.41 and South by 13th Cross Road.
4. The brief facts of the plaintiffs' case is OS No.216/2007 is
that;
One Si N.Ganapath Rao who is the father of the plaintiff had
executed a settlement deed dated 20.11.1974 with respect to the
suit schedule property in favour of the plaintiff. After execution of
the settlement deed, the plaintiff has put up a building with his
own funds and thereafter the plaintiffs have also contributed for
improvement and maintenance of the schedule property. The 2 nd
plaintiff was looking after the well being of the plaintiff and his
wife. The plaintiff was having equal amount of love and affection
towards all the three children and he was intended to divide the
property to all the sons and daughters. Also having the intention
to retain one share for himself and his wife. Such being the
circumstances, considering the undue advantage of old age and
goodness Defendant No.3 had misrepresented the plaintiff and
used undue influence and without the consent and knowledge of
the plaintiff obtained the gift deed dated 24.11.2001.
5. The entire transaction was made behind the back of
the family members and kept all the family members in dark. The
O.S.216/2007 C/w 331/2006
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plaintiff has accompanied the defendant in good faith. But the
defendant has taken the undue advantage of the plaintiff
innocence instead of getting gift deed executed for the share of her
property she got executed the gift deed with respect to the entire
property with a malafide and fraudulent intention. The husband
of the defendant has also taken a prominent role in obtaining the
fraudulent gift deed even though said gift deed was executed it
was not came into light till 2005 when it has came to the
knowledge of the plaintiff and other family members, then
N.Ashwin has obtained the certified copy of the gift deed. By
looking into the gift deed the plaintiff and his wife were shocked.
Thought the gift deed was executed in the year 2001 that was not
acted upon and without recognizing the right of other sons of
plaintiffs the gift deed was executed which is highly illegal.
6. Since for construction of 1st and 2nd floor the other
sons of the plaintiff have also contributed their hard earned
money. After coming to know of the fact of execution of gift deed
and rectification deed fraudulently the family members negotiated
with defendant No.3 and she under took to cancel the gift deed.
But the promise and assurance of the defendant was not fulfilled.
The gift deed was not executed with free will and volition and it
was not executed in sound state of mind. The said gift deed is
void ab-initio since the other children of the plaintiff have not
granted any share. The defendant and her husband have colluded
together to knock off the property obtained the fraudulent gift
deed and claiming absolute right over the property. As already
the son of the plaintiff has filed a suit in OS No.331/2006 which
is pending on the files of City Civil Court, Bengaluru and as the
O.S.216/2007 C/w 331/2006
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plaintiff came to know about the execution of the gift deed and
rectification deed fraudulently on 17.02.2005 when his son
N.Ashwin obtained the gift deed and rectification deed copy, this
suit has been filed. Since the plaintiff was not at all having any
intention or state of mind to execute such gift deed infavour of the
defendant. Though, the plaintiffs other sons are also having share
in the property, now it has become necessary to file this suit for
declaration as otherwise the sons of the plaintiff will be deprived
of the property. Hence, this suit has been filed for the relief of
declaration and consequential relief of injunction.
7. The brief facts of the plaintiffs' case is OS No.331/2006 is
that
The suit schedule property was originally acquired by Late
N.Ganapath Rao who is the father of the 1 st defendant and
grandfather of plaintiff and defendant No.2 and 3. N.Ganapath
Rao died intestate leaving behind his sons and grand children as
his legal heirs who are the parties in this suit. After demise of
N.Ganapath Rao the plaintiff and the defendants have jointly
constructed the house on the above suit schedule property which
was originally a site by contributing funds equally and also by
contributing the income of the joint family. Such being the
circumstances, the plaintiff and defendants are entitled for
partition in the suit schedule property.
8. Now, the plaintiff and 2nd defendant are residing in the
address mentioned in the cause title along with the family
members and the 3rd defendant is residing separately as she is
married. It is utter shock to the plaintiff that the plaintiff came to
know that the 3rd defendant without the knowledge and consent of
O.S.216/2007 C/w 331/2006
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the 1st defendant and the plaintiff obtained the gift deed and
rectification deed with respect to the suit schedule property by
using her undue influence on the 1 st defendant. Though the 1st
defendant was having intention to divide the property equally
between the family members. Taking undue advance of goodness
of the 1st defendant and ill health situation of 1st defendant,
obtained the gift deed clandlessly and now she is claiming
absolute right over the property. After coming to know of the fact
of execution of gift deed, the plaintiffs contacted the defendant
No.3 and she assured that she will cancel the gift deed and divide
the property equally between the parties of the joint family. But
the promise give by the 3 rd defendant has not been fulfilled. Even
after lapse of time. Under such circumstances, as the 3 rd
defendant is now claiming the absolute right over the property
contending that by virtue of the gift deed she has become owner
of the property now it has become necessary for the plaintiff to
claim share in the property. Hence, this suit has been filed for the
relief of partition and separate possession of the suit schedule
property to the extent of 1/4th share and consequential relief of
injunction against the 3rd defendant.
9. After service of summons in OS No.216/2007, the
defendant No.3 has filed the written statement.
10. After service of summons in OS No.331/2006, the
defendant No.1 and 2 have filed written statement supporting the
case of the plaintiff. It is only the 3 rd defendant who is contesting
the case. The defendants in both OS No.216/2007 and OS
No.331/2006 have contended that the contention of the plaintiff
that the gift deed was obtained fraudulently and khatha was
transferred in the name of the defendant fraudulently is
O.S.216/2007 C/w 331/2006
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absolutely and specifically denied. The suit of the plaintiff is
barred by time and the cause of action which is mentioned in the
plaint does not gives rise a right to sue by the plaintiff. The
contention of the plaintiff that he was having an intention to
divide the properties equally between the parties and hence the
question of executing gift deed only in favour of this defendant
does not arise at all is also specifically denied. After execution of
the gift deed and rectification deed this defendant is in peaceful
possession and enjoyment of the property and a vexatious suit
has been filed at the instigation of the brothers of this defendant,
though the plaintiff is not having such an intention to file this
suit. The suit is not properly valued and the court fee paid for the
relief claimed is absolutely incorrect. The suit has been filed after
lapse of five years from the date of execution of the gift deed. It is
nothing but a collusive suit filed by the plaintiff at the instigation
of the plaintiff of OS No.331/2006. At no stretch of imagination,
the suit is not maintainable.
11. The contention of the plaintiff that the schedule
property was acquired by self earning of N.Ganapath Rao is
admitted as the property was purchased jointly by four persons
and later on by virtue of partition deed dated 20.02.1929, he has
become owner of the property and said N.Ganapath Rao has
executed the settlement deed in favour of his son on 20.11.1974.
The said property was improved by the said N.Ganapath Rao out
of his own self earnings and even after execution of the gift deed a
rectification deed was also executed in favour of this defendant.
The plaintiff and his son were carrying the business by name and
style "Down Engineering Works". After executing the gift deed the
husband of the defendant has put up the construction by
investing his personal money of Rs.6,85,000/- by raising loan
O.S.216/2007 C/w 331/2006
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from Canara Bank, Rajajinagara, Bengaluru. Now as the property
is fetching more value, to grab the property the plaintiff has filed
this suit. At no point of time, the other sons of the plaintiff have
contributed the money for improvement of the schedule property.
The plaintiff has made arrangements to the sons and provided the
business for them. Under such circumstances, the question of
accepting the contention of the gift deed was obtained
fraudulently is specifically denied.
12. The plaintiff was very much educated and aware of the
consequence of execution of a document and the contention of the
plaintiff that the document was obtained fraudulently cannot be
accepted. By virtue of a registered document when the defendant
has become owner of the property the question of claiming the
property either by cancellation of the gift deed or by any other
mode is not permissible in law. From the date of execution of the
gift deed the defendant is in possession and enjoyment of the suit
schedule property and question of denying the right of the
defendant with respect to the property is uncalled for.
13. The suit has been filed at the evil intention of other
sons of the plaintiff to make the defendant to yield to their evil
intentions. When the defendant has become the owner of the
property, the question of granting injunction against true owner
does not arise at all. After the death of Bhaskar Rao, the LRS of
Bhaskar Rao have come on record for which additional written
statement has been filed and contended that the LRS have no
right to prosecute the suit and the legal representative of Bhaskar
Rao cannot claim any relief after the death of Bhaskar Rao, since
Bhaskar Rao has claimed the relief in this suit i.e., OS
O.S.216/2007 C/w 331/2006
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No.216/2007. Though huge properties have been granted to the
LRS of Bhaskar Rao with an ill-intention this suit has been
continued by the LRS of Bhaskar Rao. On all these grounds, the
defendant has prayed for dismissal of the suit.
14. On the basis of rival contentions of both the parties my
learned predecessor has framed the following issues and issue
No.1 is framed in OS No.216/2007
1 Whether the plaintiff prove that the gift
deed dated 24.11.2001 is not binding on
the plaintiff?
2 Whether the plaintiff proves the relief of
declaration regarding transfer of khatha in
respect of suit schedule property in favour
of defendant is illegal and improper?
3 Whether the plaintiff proves the
interference of the defendant?
4 Whether the plaintiff is entitled for the
relief of permanent injunction as sought
for?
5 Whether the suit is properly valued and
sufficient court fee is paid?
6 Whether the suit is barred by limitation?
7 What order or decree?
Issue No.1 is reframed on 22.6.2018 as
Additional Issues.
1 Whether the plaintiff proves that
defendant got executed Gift Deed dated
24.11.2001 and as such Rectification
Deed dated 17.11.2003 under
misrepresentation, fraudulent intention
etc., ?
2 Whether the defendant proves that
O.S.216/2007 C/w 331/2006
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plaintiff had clear title and possession
over the suit property by virtue of
registered settlement deed dated
20.11.1974?
15. During the course of proceedings as per the orders of
the Hon'ble High Court of Karnataka in WP dated 02.01.2019 the
additional issues framed was deleted.
16. On the basis of the rival contention of both the parties,
my learned predecessor has framed the following issues in OS
No.331/2006
1 Whether the plaintiff proves that suit
property is the joint family property of
plaintiff and defendants?
2 Whether the plaintiff is entitled for a share
in the suit property?
3 Whether the plaintiff is entitled for
permanent injunction sought for?
4 Whether the defendant No.1 & 2 prove
execution of registered settlement deed
dated 20.11.1974 by late N.Ganapathi
Rao ?
5 Whether the defendant No.1 and 2 prove
the defendant No.3 obtained the registered
gift deed dated 24.11.2001 from the
plaintiff?
6 Whether the defendant No.3 proves
execution of will dated 07.08.1983 by Late
Ganapthi Rao out of free will and sound
mind?
7 Whether the defendant No.3 proves
registered gift deed dated 24.11.2001 is
valid?
8 What order or decree?
O.S.216/2007 C/w 331/2006
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17. In order to prove the case of the plaintiff in OS
No.216/2007, plaintiff No.1 to 3 have been examined and got
marked Ex.P.1 to Ex.P.11. The defendant in OS No.216/2007
examined herself as DW-1 and examined two witnesses ad DW-2
and 3. The counsel appearing for the plaintiff in OS No.216/2007
and defendants have filed written arguments and also submitted
the oral arguments.
18. In order to prove the case of the plaintiff in OS
No.331/2006, PW-1 was examined and Ex.P.1 to 7 are marked.
On behalf of the defendant DW-1 was examined and Ex.D.1 to
Ex.D.11 were marked. The plaintiff counsel in this case has
argued the matter and 3rd defendant counsel and 1st and 2nd
defendant counsels have also argued the matter.
19. My answer to the above issues are as under;
In O.S. 216/2007 :
Issue No.1 In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : In the Negative
Issue No.4 : In the Negative
Issue No.5 : In the Affirmative
Issue No.6 : In the Negative
Issue No.7 : In the Negative
In O.S. 331/2006 : In the Affirmative
Issue No.1
Issue No.2 : In the Affirmative
Issue No.3 : In the Negative
Issue No.4 : In the Affirmative
Issue No.5 : In the Negative
Issue No.6 : In the Negative
Issue No.7 : In the Negative
R E A SON S
O.S.216/2007 C/w 331/2006
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20. Issue No.1, 4, 5 and 7 in OS No.331/2006 and issue
No.1 is OS 216/2007:- Since, all these issues are interlinked
with each other and they are to be answered on the same set of
facts, circumstances and reasoning inorder to avoid repetition of
facts, circumstances and reasons, I am discussing all these issues
together.
21. In order to avoid the confusion in mentioning the
respective parties in both the suits as both these suits have been
clubbed together I am referring the parties as the plaintiff referred
in the judgment will correspondents to the plaintiff in OS
No.331/2006 and plaintiff No.1(a) in OS No.216/2017. Defendant
No.2 is referred as defendant in OS No.331/2006 and plaintiff No.2
is OS 2162017. Defendant No.3 is referred in defendant
No.331/2006 and defendant in OS 216/2017 respectively.
22. The plaintiff in OS No.331/2006 have specifically
contended that the suit schedule property is a joint family property
of the plaintiff and defendant and it is also specifically stated by
the defendant No.1 and 2 is OS No.331/2006 that the property
was acquired by way of a settlement deed dated 20.11.2014.
Further the plaintiff in OS No.216/2007 has contended that the
gift deed executed in favour of the defendant No.3 in OS
No.331/2006 is not binding of the plaintiff. The defendant No.1
and 2 in OS No.331/2006 have also contended that the defendant
No.3 has obtained the registered gift deed fraudulently from the
plaintiff. In OS No.331/2006 the plaintiffs have claimed the
partition of the suit schedule property to the extent of 1/4th share
at the inception of the suit when Bhaskar Rao S/o.N.Ganapth Rao
was alive. Now inview of the death of Bhaskar Rao, the plaintiff are
O.S.216/2007 C/w 331/2006
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claiming 1/3rd share in the suit schedule property. In the same
way, at the inception of the suit in OS No.216/2007 Bhaskar Rao
has claimed the relief of declaration to declare the gift deed dated
20.11.1974 alleged to have been executed by himself in favour of
defendant No.3 and by virtue of that gift deed the 3rd defendant has
become the owner of the property and it is also specifically alleged
that the said gift deed was obtained fraudulently without
intimating the details and covenants of the gift deed to Bhaskar
Rao though Bhaskar Rao was having intention to divide the
property equally between the sons and daughters. Hence, the said
gift deed is not binding on the plaintiff that is Bhaskar Rao at the
inception of the suit and now the plaintiff No.1 and 2 are 1A and
1B are claiming that relief. The defendant No.3 on the contrary in
OS No.331/2006 has specifically contended that Bhaskar Rao who
is none other than the father of the defendant No.3 and father of
plaintiff No.1A and 1B in OS No.331/2006 with his own volition
and love and affection has executed the gift deed dated 20.11.1974
and there upon as there was a mistake in the said gift deed, a
rectification deed was also executed in favour of her on
17.11.2003. Thereby, the defendant No.3 has beocme owner of the
suit schedule property.
Now, the undisputed facts are in this suit about the
ownership of the property by Bhaskar Rao since both the parties
specifically admits about the acquisition of the property by
Bhaskar Rao through a settlement deed from his father that is
N.Ganapath Rao.
23. The learned counsel appearing for the plaintiff in OS
No.331/2006 and LR 1B after the death of Bhaskar Rao counsel
have vehemently contended and argued that though the property
O.S.216/2007 C/w 331/2006
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has been acquired by way of settlement deed, when the property
has been acquired by Bhaskar Rao from his father and upon the
birth of their children the property will become a joint family
property by virtue of birth of Bhaskar Rao children and at no point
of time, the defendant No.3 who is none other than the daughter of
Bhaskar Rao and Sister of plaintiffs have denied the acquisition of
the property by Bhaskar Rao by way of a settlement deed and it is
also not in dispute by the respective parties to the suits that after
acquiring of property by Bhaskar Rao all the joint family members
have enjoyed the property jointly wherein Bhaskar Rao and his
sons were staying in the schedule property by enjoying the same as
a joint family members. Further, they have also contended that in
the suit filed by Bhaskar Rao in OS No.331/2006, Bhaskar Rao
has specifically admitted that after acquisition of the property, he
and his sons have invested money for putting up construction of
the property and thereby it has become a property of the joint
family.
24. In this regard, the learned plaintiff counsel has drawn
my attention to the decision reported in AIR 1999 Orissa 66 and
2007(4) KCCR Short Notes 278, 2009(2) KCCR 1206 and argued
that the onus of proving the property is not a joint family property
is upon a person who denies it and further he has contended that
when the property has been acquired by a person from his father it
is to be considered as the joint family property. In support of the
plaintiff arguments, the LRS of 1B have also drawn my attention to
the decision reported in AIR 1987 SC 1775, AIR 2019 SC 3098,
AIR 2000 SC 3529, AIR 1996 SC 735 and argued that according to
Mitakshara law, a coparcenary cannot execute gift of his undivided
share without the consent of other coparceners.
O.S.216/2007 C/w 331/2006
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25. He has also argued that all the properties inherited by a
male Hindu from his father, father' father or father's father's father
is an ancestral property. The essential feature of ancestral
property, according to mitakshara law, is that sons, grandsons,
and great grandsons and now daughters inview of the recent
decision of Hon'ble Supreme Court who inherits it, acquire interest
and right in such property at the moment of their birth. It is also
specifically argued that after partition of the property in the hands
of son will continue to be an ancestral property and any property
acquired by partition or by way of settlement deed will have to be
considered as an ancestral property of the coparceners. Where as
in this case, it not in dispute that Bhaskar Rao has acquired the
property by way of a settlement deed from his father. No doubt the
covenant mentioned in the settlement deed states about the
question of absolute right. But the property was acquired by way of
a settlement deed in favour of Bhaskar Rao from N.Ganapatha Rao
and as soon as these sons and daughters of Bhaskar Rao has
taken birth that property will acquired the nature of a joint family
property. Hence, the property will have to be considered as joint
family property of Bhaskar Rao and their sons and daughter.
Further, the learned counsel appearing for the plaintiff in OS
No.331/2006 and LR 1B in OS No.216/2007 have vehemently
contended that according to the defendant No.3 Gift Deed was
executed by Bhaskar Rao who is none other than the father of
defendant No.3. But the attestors who have affixed their signature
and the person who has drafted the gift deed and rectification deed
are a formal Canara Bank Employees. Bhaskar Rao is not known
to these persons. In the cross-examination of Defendant No.3 has
specifically admitted that she does not know who are all the
O.S.216/2007 C/w 331/2006
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witnesses who have affixed their signature to both these
documents such as Ex.D.1 and Ex.D.2. One witness is the friend of
Defendant No.3's husband and another witness is the husband of
defendant No.3. The scribe of the document is also the friend of
husband of defendant No.3.
26. Now in the course of cross-examination of D.W.2 in OS
No.216/2007 the D.W.2 has specifically stated that gift deed was
executed coincidentally and he was not aware of the gift deed prior
to its execution and at the time of execution of the gift deed he was
working as a Manager of the Bank. He has also specifically
admitted that he was a friend of husband of defendant No.3 and
also specifically admitted that the sons of Bhaskar Rao were not
present. He has also specifically admitted that the scribe of the
document was also formal Canara Bank Employee. DW-3 also
specifically admits this fact and in the cross-examination he states
that N.Dinakar Rao who is none other than the brother of Bhaskar
Rao has instructed him to prepare the gift deed. He has also
specifically admitted that he cannot say who were present at the
time of registration of gift deed. He also specifically admits that he
is not aware who are the witnesses to the gift deed. But he
specifically states that he was present when the document was
registered and he puts signature to that document as a scribe. If
such being the case, he could have known the presence of persons
who have affixed their signature as attestors to that document.
Further, the learned counsel appearing for the plaintiff in OS
No.331/2006 and LRS of 1B in OS No.216/2007 have specifically
contended that the stamp paper was purchased in the name of 3 rd
defendant on 23.11.2001. The stamp paper was not purchased in
the name of Bhaskar Rao. He has also drawn my attention to the
O.S.216/2007 C/w 331/2006
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witnesses and scribe to the Ex.P.2 and also the rectification deed
alleged to have been executed by N.Bhaskar Rao. The very same
set of witnesses have attested both the documents. For rectification
deed also the stamp paper has been purchased in the name of
defendant No.3. Under such circumstances, the execution of the
gift deed by Bhaskar Rao has not been established by Defendant
No.3 and the specific plea of fraud has been convincingly
established by looking into the pattern of witnesses who have
affixed their signature to the documents. Further, he has also
specifically drawn my attention to the Khatha certificate which is
issued in favour of defendant No.3 which is marked as Ex.D.5 was
in the year 2013. Though the deed was executed on 24.11.2001
and 17.11.2003 after gap of 10 years khatha was changed in the
name of defendant NO.3. Though according to the defendant No.3
she has borrowed the money for putting up construction, but plan
was sanctioned in the name of Bhaskar Rao. If really there was
execution of gift deed as contended by defendant No.3 there could
have been a sanction plan in the name of defendant No.3 alone.
Further, it is also to be noted that in accordance with the Transfer
of Property Act, the gift is defnied under Section 122 of the Act.
Wherein it is specifically stated that after execution of the gift deed
it has to be accepted and the same has to be made during the life
time of a donee. The essential ingredients of a gift is the delivery of
possession of the property. But where as in this case, the
possession was not delivered to the defendant No.3. Even today,
the plaintiffs are in continues possession and enjoyment of the
property.
27. Further, he has also drawn my attention to the cross-
examination portion of DW-1 in OS No.331/2006, where in she
O.S.216/2007 C/w 331/2006
20
has specifically admitted as follows:-
" That Guruprasad is residing in the address
since about seven to eight years. I have not filed any
complaint nor initiated any Civil case against him for
forcible occupation of property by him. My husband
was working in Canara Bank. The plan was
sancti0ned in the name of my father as Khatha stood
in his name. My husband took initiative and got the
plan sanctioned in the name of my father. It is true
that I often visiting my father and demanding share in
the property. I have not take any legal steps against
plaintiff to vacate the suit property" .
28. By looking into all these specific admissions given in the
course of cross-examination of Defendant No.3, it is clearly
established before the court that the possession is with the plaintiff
and if really there was a gift deed and rectification deed as
contended there could have been delivery of possession also. By
considering all these facts it can be safely held that there was no
such gift or rectification of deed. It was fraudulently obtained. To
corroborate the status of health of Bhaskar Rao, the document
Ex.P.2 to 11 have been produced which clearly establishes the fact
of aliment by Bhaskar Rao and the same is admitted by defendant
No.3 in her cross-examination which clearly establishes the
aliment of Bhaskar Rao at the time of execution of the gift deed.
Under such circumstances, both of them have contended that the
gift was not executed voluntarily by Bhaskar Rao and without
knowing the contents of the document and without intimating the
details mentioned in the document the defendant No.3 has
obtained the gift deed. Hence, the gift deed executed in faovur of
O.S.216/2007 C/w 331/2006
21
the defendant No.3 according to defendant No.2 is not binding on
the plaintiffs. In the absence of proof of execution of the gift deed
and rectification deed, the property will have to be considered as a
joint family property and the plaintiffs are entitled for share in the
property according to the arguments of learned counsel appearing
for LR No.1B, and plaintiff is OS No.331/2006.
29. The 3rd defendant is contending that when a property
has been acquired by the settlement deed and after obtaining the
property by way of a settlement deed Bhaskar Rao has enjoyed the
property as his self acquired property and when he has become
absolute owner of the property by virtue of a document such as
settlement deed which is marked in this case as Ex.D.2. Further, it
is also contended by Defendant No.3 that this property was
acquired by N.Ganapatha Rao by virtue of a partition deed dated
20.02.1929 and became owner by virtue of that partition deed. The
specific contention and the arguments canvassed by the 3 rd
defendant counsel is that the property which was acquired by
Bhaskar Rao by virtue of settlement deed is not an ancestral
property because there was no joint family nucleus to obtain this
property by Bhaskar Rao. On the other hand this property along
with other properties were purchased in the joint name of four
persons and they divided the property between them and in that
division of the property the schedule property was allotted to the
Ganaptha Rao. In such a circumstances, when the property has
not been acquired or obtained the property by devolution of
coparcenars interest or co-parssery ownership or ancestral in
nature, the question of considering that property at the hands of
N.Ganapath Rao as a joint family property or a coparcenary
property or ancestral property does not arise at all.
O.S.216/2007 C/w 331/2006
22
30. Further, he has argued that after obtaining the property
by partition deed N.Ganapath Rao has executed the settlement
deed in favour of Defendant No.3s father dated 20.11.1974. When
property has been acquired by settlement deed and acquired the
property as his self acquired property the contention of the plaintiff
in OS No.331/2006 as it is a joint family property cannot be
considered at all. At any stretch of imagination the property cannot
be considered as a joint family property.
Further, he has also drawn my attention to the covenants
mentioned in the settlement deed which reads as follows;
"Other adjacent properties, from
the date of his acquisition as aforesaid
up to the date of these presents, in his
own right, the same being his self
acquisition, he having had no
ancestral nucleus of any sort
whatever.
To have and to hold the same,
for ever without any limitations, as to
the mode or manner of his enjoyment
of the schedule property, settled upon
him and to deal with the schedule
property in any manner he deems
best, in his own interest".
By Looking into the covenants mentioned in the settlement
deed it can be safely held that the property was not an ancestral
property because in the document itself when it is specifically
stated that there was no ancestral nuclues or any such sort
whatsoever, the question of considering the proeprty as a joint
O.S.216/2007 C/w 331/2006
23
family property does not arise at all. When the property is not
considered as a joint family property the question of calming
partition by the plaintiff in OS No.331/2006 would not arise at all.
Further, the learned counsel appearing for the defendant
No.3 who is a beneficiary of the gift deed has vehemently
contended in his argument that the claim of the plaintiff in OS
No.216/2007 is that taking undue advantage of his old age, and
his goodness the 3rd defendant has misrepresented that she will be
taking only undivided share in the property had managed
clandlessly to get the gift deed dated 24.11.2001 which was
registered before the Sub-Registrar Office and after execution of
the gift deed, the 3rd defendant has put up a construction on the 1 st
and 2nd floor by obtaining the sanctioned plan which establishes
the construction of the property on the schedule by 3 rd defendant
even though it was sanctioned in the name of Bhaskar Rao.
Further, the khatha extract which is marked as Ex.D.5 and tax
paid receipts Ex.D.6 to 11 will certainly establishes the fact of
acquisition of a right of ownership over the suit schedule property
by 3rd defendant.
31. When a specific allegation has been made by the
plaintiff in OS No.216/2007 and the defendant in OS No.331/2006
that a fradulent act has been committed by defendant No.3 and
obtained the gift deed in her favour and also to obtain the
rectification deed in her favour that fact will have to established by
a convincing evidence. When a fraud has been alleged in the suit
under Order VI Rule 4 of CPC, a mere plain alleging the act of
fraud will not be sufficient to consider the allegation of fraud. On
the contrary the mere evidence and accurate pleadings with regard
to the nature of fraud, date of fraud, the involvement of the person
O.S.216/2007 C/w 331/2006
24
in committing the fraud will have to established convincingly
before the court. If that is not established, then the question of
considering the fraud as contended by the parties will be of no
consequences.
32. In this regard, the learned defendant No.3 counsel has
drawn my attention to the decision reported in 2006(3) KLJ 172
where in it has been specifically held that - When a fraud has been
taken in the absence of particulars of fraud, misrepresentation and
undue influence the court cannot give finding on that aspect". He
has drawn my attention to the cross-examination portion of DW-1
in OS No.216/2007. There is absolutely no cross-examination on
the aspect of fraud,undue influence and misrepresentation as
stated in the plaint. The cross-examination does not reveal any
aspect with regard to the non execution of the gift deed as well as
rectification deed. On the other hand, the cross-examination is
concentrated only upon the fact of witnesses who have attested to
Ex.D.1 and Ex.D.2. Even in the cross-examination portion of DW-2
and 3 also there is absoltuely no cross-examination with regard to
the fraud facts. In such a circumstance the question of considering
the plea of fraud as contended by them to be disregard with
respect to the execution of the gift deed as well as rectification deed
will not arise at all. The question of considering the fact that
Ex.D.1 and Ex.D.2 were obtained fraudulently is not established
before the court convincingly as per the arguments of Defendant
No.3 counsel.
Further, the learned defendant No.3 counsel has also
contended that when the property has not been acquired from the
nucleus of the join family property or acquired in the nature of
ancestral property in nature, the question of considering the
O.S.216/2007 C/w 331/2006
25
property as a joint family property does not arise at all. In such a
circumstance, the learned defendant No.3 counsel has contended
and submitted before the court that the contention of the plaintiff
in OS No.331/2006 that property is a joint family property and the
contention of plaintiff in Os No.216/2007 that the gift deed and
rectification deed were obtained fraudulently has not been proved
before the court. Under such circumstances, there is no
impediment for the court to answer issue No.1 in the negative
and issue No.4 in affirmative, issue No.5 in negative and
issue No.7 in affirmative pertaining to OS No.331/2006 and
issue No.1 in OS No.216/2007 will have to be answered in
negative.
33. Now, in this case, the plaintiff in OS No.331/2006 is
claiming the property for a partition alleging that the property is
ancestral property and joint family property and also contended
that the alleged gift deed and rectification deed which are marked
as Ex.D.1 and Ex.D.2 in favour of defendant No.3 is a fraudulent
document and defendant No.3 is contending that as the property is
a self acquired property of Bhaskar Rao he has got authority to
execute the gift deed and when a registered document has been
executed in favour of a person unless until that is set aside by the
competent court the document will have to be considered as valid
document. The burden of proving that aspect is upon the person
who denies that document. Now, it is to be specifically noted in
this case that DW.2 and 3 who are the witnesses and scribe to the
document Ex.D.2 and Ex.D.3, have unequivocally stated that the
Bhaskar Rao was not known to these witnesses. The defendant
No.2 says that the gift deed which was executed at the time when
he was working as Manager in Canara Bank. He specifically states
O.S.216/2007 C/w 331/2006
26
that he does not know who are the other witnesses who have
affixed the signature as attestor to that documents.
34. Now, in this case, the husband of defendant No.3 was
also a attestor of these two documents such as Ex.D.2 and Ex.D.3.
But that witnesses has not been examined before the court to
prove the document. No doubt the gift deed is not compulsorily
attestable document and it can be proved without examining the
attesting witnesses. But when 3rd defendant has specifically stated
before the court in the course of cross-examination that her
husband has made all arrangement for sanctioning the plan and
also the persons who have attested the document, scribed the
document were familiar and acquainted with him. The examination
of that person will have a vital role in proving that document.
35. Further as rightly contended by the plaintiff and
plaintiff 1B counsels when the stamp paper has been purchased in
the name of 3rd defendant and in the absence of other sons of
Bhaskar Rao this document has been executed will certainly
creates doubt in the minds of the court to accept that document as
a natural document to consider same in favour of 3 rd defendant.
Further, it is also to be noted there is no any enmity or there is no
aversion towards other sons of Bhaskar Rao by the father. Inspite
of that they have been completely excluded in the gift deed. The
learned counsel appearing for the defendant No.3 has contended
before the court that the business industiry was granted to the
sons of Bhaskar Rao which is admitted in the course of cross-
examination by the sons of Bhaskar Rao that is the Plaintiff No.1A.
But to corroborate that stand no material is placed on record by
defendant No.3 counsel. There is no document to establish the fact
O.S.216/2007 C/w 331/2006
27
that the sons of Bhaskar Rao were allotted a different property for
their enjoyment. In the absence of providing any property to the
sons of Bhaskar Rao, even though he is not having enimacity to his
sons and giving exclusive property to the 3 rd defendant by way of
gift deed will certainly creates a doubt with respect to the execution
of that document as contended by defendant No.3.
36. Further, the circumstances explained by the plaintiff
and plaintiff No.1B counsel and also by analyzing the
circumstances and the pattern in which documents have been
attested by attestors or scribe will certainly establishes the fact of
fraud and undue influence used on Bhaskr Rao to obtain such a
document as Ex.D.1 and Ex.D.2. Further, if really the Bhaskar Rao
has executed the gift deed the question of filing the suit in OS
No.331/2006 would not arise arise at all. It is rather very
unfortunate a father himself has filed a suit against his own
daughter to set aside the gift deed. Further, the conduct of 3 rd
defendant and the non acting of 3rd defendant on gift deed will also
establishes the contention of the plaintiff in OS No.331/2006 and
the plaintiff in OS No.216/2007. Because even though the
document was executed in 2001 and 2003, the khatha was not
transferred in the name of 3rd defendant till 2013 and no
possession has been taken by the 3 rd defendant till this day. She
has specifically admits Guruprasad continued in possession and
enjoyment and Bhaskar Rao continued in possession and
enjoyment of the property till his death. Though she has contended
that she has given a permissive possession and enjoyment right for
all these persons that is not corroborated by any of the document
or oral evidence except the say of defendant No.3 that too in the
course of cross-examination. Even in the cross-examination she
O.S.216/2007 C/w 331/2006
28
has specifically admitted that there was a negotiation between the
father and daughter for cancellation of gift deed in the year 2005
and she was demanding for share in the property. If really there
was execution of gift deed and settlement deed, the question of
claiming her share and negotiation with respect to that aspect
would not have been arise at all.
37. In the written statement though the 3 rd defendant has
took up a contention that there is no fraud as contended by the
plaintiffs but virtually by looking into the evidence adduced by the
defendant No.3 and the manner in which the documents have been
executed and got registered and attested will certainly establishes
the fact of non disclosing of the factors and details mentioned in
Ex.D.1 and Ex.D.2 to the deceased Bhaskar Rao. There by it leads
to filing of the suit in OS No.331/2006. By considering all the
chronological events and by analyzing the chronological acts and
deeds of the parties and by considering the cumulative fact of the
evidence placed before the court, I am of the opinion that the gift
deed and rectification deed which are marked as Ex.D.1 and
Ex.D.2 were not a genuine document as contended by defendant
No.3. On the other hand, the plaintiff in OS No.331/2006 and
213./2007 have unequivocally established the fact that a fraud has
been committed on Bhaskar Rao to obtain that document and
hence the same is not binding on the plaintiffs. The defendant No.3
has miserably failed to established the genunity of the document
and the document was executed in favour of defendant No.3 with
own volition, love and affection and with free will and in a sound
state of mind. The defendant No.3 has miserably failed to establish
all these above facts in which circumstances I have no hesitation
to answer issue No.1 in OS No.216/2007 in Affirmative, issue
O.S.216/2007 C/w 331/2006
29
No.1 in O.S.331/2006 affirmative and issue No.4 in
Affirmative and 5 in Negative and issue No.7 in Negative.
38. ISSUE NO.6 IN OS NO.331/2006:- Now the defendant
No.3 is contending that the Ganapath Rao has executed a will
dated 07.08.1983 out of free will and sound mind. In the written
statement is has been contended that there was a Will executed by
Ganapath Rao in favour of Bhaskar Rao. But this aspect has not
been established by the defendant No.3 either in OS No.331/2006
or in OS 216/2007. Because the defendant though contended
about the will neither the will is produced before the court nor
there is no evidence with regard to the execution of the will as
contended by the defendant No.3. Now the defendant NO.3 is
contending that the property was acquired by Bhaskar Rao by
virtue of will dated 07.08.1993. It is the burden on her to prove
that aspect. But no attempt has been made by the 3 rd defendant to
establish that fact. A specific contention has been taken that
according to the Will dated 07.08.1993 the site measuring 43X5 ft
was devolved upon the 1st defendant namely N.Bhaskar Rao and
thereby the 1st defendant has become absolute owner of the suit
schedule property measuring 43X62ft. after the demise of his
father. But to establish that fact no material evidence is placed on
record. On the contrary with respect to the extent of schedule
property with respect to the acquisition of the schedule property
owned by Bhaskar Rao to the extent mentioned in the schedule
there is no dispute either by the plaintiff or by the defendant.
Inspite of no denial by parties when a specific defence has been
taken in the written statement it is the burden on the 3 rd defendant
to prove the due execution of the Will by Ganapath Rao in favour of
Bhaskar Rao. But to corroborate the fact neither the original will
O.S.216/2007 C/w 331/2006
30
nor the copy of the will is produced before the court. On the other
hand, much of the facts canvassed on the basis of settlement deed
by the 3rd defendant also. Inspite of specific defense the will has
not come to the light at all. Under such circumstances, the
question of considering the issue No.6 in favour of 3rd defendant
does not arise at all. Hence, I have no hesitation to answer
issue No.6 in negative.
39. ISSUE NO.5 IN OS NO.216/2007:- Now the 3rd
defendant has contended in the written statement ans as well as in
the argument before the court that the suit schedule property has
been valued at the rate of 2000/- and the nominal court fee has
been filed for the relief claimed in the plaint. But according to the
settlement deed executed by Ganapath Rao in favour of Bhaskar
Rao it has been stated the worth about of Rs.20,000/- property
has been given to the Bhaskar Rao in the year 1974. But even in
the year 2007, the suit is valued for Rs.2000/-. Hence, the value
made by the plaintiff for the relief of declaration is not a correct
value and no declaratory relief can be granted in favour of the
plaintiff. He has specifically argued before the court that when a
settlement deed is admitted by the parties, the valuation
mentioned in the settlement deed will have to be considered for the
purpose of court fee and suit valuation. But that is also not done
in this case. Hence, the suit is liable to be rejected for n-under
valuation and non payment of proper court fee.
40. The learned counsel appearing for the plaintiff No.1B
has contended that the relief claimed in this suit in OS
No.216/2007 is in the form of not binding in nature. When the
relief is claimed in the nature of non binding the question of paying
O.S.216/2007 C/w 331/2006
31
the court fee on the market value of the property does not arise.
The nominal value has to be paid. According to the gift deed the
property has been given to the defendant No.3 without any
consideration, because the essential ingredients of the gift deed is
transfer of property without consideration. Under such
circumstances, when the plaintiff has claimed the relief of not
binding of that document, the question of making payment of the
court fee and valuation on the market value of the property does
not arise at all. Hence, he contended that the valuation made by
the plaintiff is proper and court fee paid is also sufficient. It is to
be specifically noted as rightly contended by the plaintiff No.1B,
counsel that the relief claimed is in the form of not binding which
is not the relief claimed that the declaration of a document is a null
and void. When the relief is claimed as not binding in nature, the
court fee paid by the plaintiff will be absolutely acceptable. If the
relief is claimed as null and void, then only the market value of the
property has to be paid. Under such circumstances, I am of the
opinion that the plaintiff has successfully established about the
valuation and court fee paid is sufficient. Hence, I have no
hesitation to answer issue No.5 in affirmative in OS No.216/2007.
41. ISSUE NO.6 IN OS NO.216/2007:- This issue is a very
important issue for considering both these suits. Since the 3 rd
defendant has took up a specific contention that the gift deed was
executed in the year 2001 and the rectification deed was executed
in the year 2003, but this suit has been filed in the year 2007.
That means to say the suit has been filed after the lapse of six days
from the date of execution of the gift deed and four years from the
date of execution of rectification deed and in accordance with
article 58 of Limitation Act has to be applied and it has to be held
O.S.216/2007 C/w 331/2006
32
that the suit is barred by law of limitation. The article 56 says that
any relief of declaration on the basis of fraudulent of a instrument
issued or registered is three years when the issue or registration
comes known to the plaintiff. The learned counsel appearing for 3 rd
defendant has much contended that according to the 3 rd defendant
N.Bhaskar Rao who is the father of plaintiff No.216/2007 was
present before the Sub-Registrar when Ex.D.1 and Ex.D.2 were
registered. That means to say in accordance with the well
established principles of law that the registered document was
registered in the presence of the executor then it can be held
executor was having knowledge of that document. Such being the
case the date of execution of Ex.D.1 is 17.11.2001 and Ex.D.2
dated 17.11.2003 the three years expires on 2004 and 2006. But
where as this case has been filed in the year 2007. Hence, the suit
of the plaintiff is hopelessly barred under law. At any stretch of
imagination no relief can be granted to the plaintiff. He also
specifically argued and contended that Article 59 of limitation Act
states that - the starting point of limitation to set aside the
instrument is from the date of knowledge about the fraud which
includes derivative or constructive knowledge". Though in this
case, the plaintiff have contended that the knowledge of the
document has come to him in the year 2005 that is absolutely
made for the purpose of the filing of the suit on the contrary when
the document has been registered the same has come to knowledge
to the plaintiff. Hence, the suit is not maintainable and it is barred
by law of limitation.
The learned counsel appearing for the plaintiff 1B and
plaintiff have contended that it is only in the year 2005 when the
defendant No.3 has took some persons to the property to alienate
or to sell the property and at that point of time, they came to know
O.S.216/2007 C/w 331/2006
33
that such gift deed has been executed in favour of defendant No.3.
There upon they came to know about the document and thereafter
they obtained the certified copy of the gift deed. Then only they
came to know about the execution of the gift deed. Though such
contention has been taken in the plaint nothing has been elicited
from the mouth of PW-1 by way of cross-examination to disbelieve
his version. On the contrary, though the document were executed
in the year 2001-2003, the defendant No.3 was not acted upon
that document, till 20013. That is to say as except the change of
khatha no other steps have been taken by Defendant No.3.
42. Further, it is to be noted under Limitation Act under
Article 58 says that - To obtain any other declaratory relief, three
years of limitation is prescribed when the right to sue 1 st accrues.
By conjunctive reading of article 58 and 59 it is established that to
obtain any other decree three years period is prescribed from the
date when the right to sue 1st accrues and it is stated in article 59
when the document 1st came known to him. The words when the
right to sue 1st accrues and from the date when the 1st became
known to him are very important words to be noted for purpose of
considering the point of limitation in this suit to decide whether
the suit is filed with in a period of limitation or not.
Further, it is to be noted in AIR 2010 SC page 3240, it has
been specifically held that - Mere adverse entry in revenue records
will not gives rise to cause of action. But it has been held right to
sue occurs when there is a clear and unequivocal in fringe of the
right. Where as in this case, though the document was executed
in the year 2001-2003. The plaintiffs have demanded for their
share in the property by issuing notice in the year 2005, when they
O.S.216/2007 C/w 331/2006
34
came to know that such a document has been in existence.
Though this fact has been stated in the plaint and in corroboration
to that averments notice is marked as Ex.P.1 in OS No.331.2006,
which bears date 17.09.2005 for which this defendant that is 3 rd
defendant who is the only contesting defendant in the suit has not
replied nor denied the aspect of issue of notice either in the
evidence nor in any other mode. When such being the case and
circumstances I am of the opinion that as rightly contended by the
plaintiff counsel and 1B plaintiff counsel the date of knowledge of
the document will have to be considered for the purpose of
counting limitation in this suit is of year 2005. Though the
Bhaskar Rao was executant for the document which is not come in
to light till the date of issue of notice, under such circumstances, I
am of the opinion that as rightly contended by the plaintiff counsel
in OS No.216/2007, the date of knowledge is to be considered as
2005, three years will expires in the year 2008 and this suit has
been filed in the year 2007 and by considering the joint reading of
Article 58 and 59 it can be safely held that the suit is well within
time and the contention of the defendant that the suit is barred by
law of limitation is of no consequence and I am of the opinion that
the defendant No.3 has miserably failed to establish the fact that
the suit is barred by law of limitation. Hence, I have no hesitation
to answer issue No.6 in Negative.
43. ADDITIONAL ISSUE NO.1 AND 2:- Though additional
issue No.1 and 2 have been framed by this court but by virtue of
the order passed by the Hon'ble High Court of Katakana in WP
No.30097 and 30098/2018 both these issues were strucked down
and deleted by this court as per the order dated
02.01.2019.Hence, the same does not survive for consideration for
O.S.216/2007 C/w 331/2006
35
discussions.
44. In this case the 1B plaintiff counsel has contended in the
written argument and in the oral argument that though he was
examined as PW-2, and in further examination he produced the
document, this court has rejected the further evidence in view of
the High Court order though there was no specific finding in the
WP that further evidence cannot be considered. It is only order is
passed to delete the additional issues framed by this court and
evidence of these witnesses was recorded before the additional
issues framed. Hence, though order is passed on memo by this
court rejecting the further evidence and further document
produced by the plaintiff which are very vital and important
document on account of that the plaintiff has put to greater
hardship.
45. But it is to be specifically noted that in WP, it has been
specifically stated that framing of additional issues are set aside.
The said order was passed on 02.01.2019. Now, the further
evidence of PW-2 was filed and in the affidavit it has been
specifically stated that in pursuance of additional issues, the
further evidence is adduced and in the application filed under
order 7 Rule 11(4) also stated that additional issues have been
framed and permitted the plaintiff to lead further evidence. Under
such circumstances, the question of considering the further
evidence when additional issues have been deleted, by the court
does not arise at all and accordingly, the order was passed on the
memo.
The other defence taken by the learned 3 rd defendant counsel
in this suit is that in accordance with the Section 31 and 34 of
O.S.216/2007 C/w 331/2006
36
Specific Relief Act, the mere declaration has been claimed without
any further relief since the plaintiff are in possession and
enjoyment of the property the question of granting relief of
injunction in favour of the plaintiff does not arise at all. Mere
declaration and declaratory relief will be remaining to present to
grant. In accordance with the Section 31 of Specific Relief Act,
whether the suit has been filed by the person to cancel the written
instrument which is void or voidable for that person, and if it
becomes serious and such a relief will have to be granted by
considering the nature of the document whether it is voidable or
void ab-initio. Further by perusing the section 31 and 34 of the
specific relief Act it is established that the void and voidable
document will have to be considered. The void document is a
document wrong from the beginning but a voidable document is
voidable document at the option of the party. Hence the claim
made by the Plaintiff is O.S.216/2007 neither in the nature of void
and voidable relief in furtherance of the main relief. Hence the suit
of the Plaintiff is not maintainable. In this regard he has drawn
my attention to the decision reported in 2019 AIR SC 2696 and
argued the suit of the plaintiff is not maintainable.
But it is to be specifically noted that the plaintiff in both the
suits have been claimed the relief for partition and consequential
injunction and another one for declaring the gift deed is not
binding on them and consequential declaration the katha entered
in favour of defendant No.3 is illegal and improper. Such being the
circumstances, as there is a consequential relief of injunction as
well as the other relief. The contention of the 3 rd counsel that the
mere relief of declaration cannot be granted is of no consequence
and the decision referred by the 3rd defendant counsel is not
O.S.216/2007 C/w 331/2006
37
applicable to the facts of the case because in the decision referred
by the 3rd defendant counsel, the Hon'ble Apex Court has
considered the right of a minors with respect to the alienation
made which is the property belonging to him. But where as in this
case, no such facts are there or no such circumstance arises in
this case. On the contrary it has been claimed by the father and
sons for declarating the gift deed is not binding on them. As
already discussed in detail in issue No.1, 3, 4, 5 and 7 I have come
to the conclution that the gift deed is not genuine document and it
is not binding on the plaintiff. Under such circumstances, the
question of considering the defence taken by the 3 rd defendant is of
no consequences.
46. ISSUE No.3 in OS No.331/2006 and Issue No.3 and
4 in OS No.221/2007:- In both these suits, the plaintiffs have
claimed the relief of permanent injunction on the allegation that
the 3rd defendant is making hectic efforts to alienate the property
and also trying to interfere with the peaceful possession and
enjoyment of the plaintiff. But inorder to establish the specific way
of interference no specific evidence is placed on record and no
documents are produced by the plaintiff to establish about her
interference. It is well established principle of law that when a
specific way of interference by the opposite party or interference by
the defendant even though he has no right to do so is established
then only the question of granting the relief of permanent
injunction arises. More particularly it has been contended that all
the parties in the suit are co-parceners. Under such
circumstances, when there in no threat for possession or no
interference to the possession the injunction cannot be granted
against other coparceners for enjoyment of the property. In the
O.S.216/2007 C/w 331/2006
38
joint family all the members are owner of joint family property. It is
a specific admitted fact by the 3 rd defendant also by way of a
specific admission given in the course of cross-examination that
the plaintiff are in continuous possession and enjoyment of the
suit schedule property and she has not taken any steps to vacate
them from the suit schedule property. Under such circumstances,
the question of granting relief of permanent injunction would not
arise at all. Hence, I have no hesitation to answer issue No.1 in
O.S. 331/2006 and Issue No.4 is O.S.216/2007 in negative.
47. ISSUE NO.2 IN OS NO.331/2006:- This issue is
relating to granting of share in the suit schedule property. Now a
the inception of the suit, the plaintiffs have claimed 1/4th share in
the suit schedule property. During the pendency of the suit,
Bhaskar Rao has succumbed to death and now only the two son
and daugher are entitle to share the property. As per discussion in
detail in issue No.1, 3, 4, 5 and 7 I have come to the specific
conclusion that the property has to be considered as a joint family
property and the gift deed executed in favour of the 3 rd defendant is
not binding on the plaintiff. Under such circumstances, the
plaintiffs are entitled for share in the property. More particularly it
is also to be noted that even if it is considered as a self acquired
property of the Bhaskar Rao upon death of Bhaskar Rao, the
succession opens and in accordance with the Hindu Succession
Act of the Class I heirs are entitled for share in the property.
Admittedly, the plaintiffs and defendants are the class I heirs. Very
recently the Hon'ble Apex Court also has held in the decision
Vinutha sharma V/s Rakesh Sharma wherein the daughters are
also entitled for a share in the joint family property or in a
coparcener property irrespective of death of their father. Under
O.S.216/2007 C/w 331/2006
39
such circumstances, when the property has been held as a joint
family property of the persons who are the joint family members
and co-parcerner they are entitled for a share in the suit schedule
property. Hence, I have no hesitation to grant share in the property
as Bhaskar Rao has succumbed to death the parties are entitled
for 1/3rd share in the suit schedule property.
48. ISSUE NO.2 IN OS NO.216/2007:- As already
discussed in issue No.1, 3, 4, 5 and 7 I have come to the
conclusion that the gift deed executed in favour of the 3 rd
defendant is not binding on the plaintiff and it is not a genuine
document. Under such circumstances, the khatha transfer made
in favour of the 3rd defendant will also to be considered as illegal
and improper. Hence, I have no hesitation to answer issue No.2 in
affirmative.
Since, both the suits have been clubbed together and
common judgment has been passed and two sets of judgment has
been taken print out in green paper and original judgment is kept
in OS No.216/2007 and copy of the same is kept in OS
No.331/2006. Inview of the above discussion, I pass the following;
49. ISSUE NO.7 in OS No.216/2007 and Issue No.8 in
OS No.331/2006:- Inview of my findings on above issues in both
the suits, I proceed to pass the following:
ORDER
The suit of the plaintiff in OS No.216/2007 is here by decreed in part with costs.
O.S.216/2007 C/w 331/2006 40 The gift deed dated 24.11.2001 registered as document No.4145/01-02 is not binding on the plaintiff.
Further, the khatha transfer made in respect of the schedule property in favour of 3 rd defendant is also declared as illegal and improper.
However the relief of injunction is hereby negatived.
Draw decree accordingly. The suit of the plaintiff in OS No.331/2006 is hereby decreed in part.
The plaintiffs are entitled for 1/3rd share in the suit schedule property by metes and bounds.
The relief of injunction claimed in the suit is here by negatived.
Draw preliminary decree granting three months time.
(Dictated to the Stenographer, transcript corrected, signed and then pronounced by me in the open Court on this the 26 th day of August, 2020).
(S.R.MANIKYA) LXI Addl. City Civil & Sessions Judge, Bangalore.
A NN E X U R E I. List of witnesses examined on behalf of :
Plaintiff's side in OS No.216/2007:
PW-1 : N.Bhaskar Rao
PW-2 : N.Ashwin Ninpally
PW-3 : K.S.V.Murthy
O.S.216/2007 C/w 331/2006 41 Defendant's side in OS No.216/2007:
DW-1 : Nilima Ubhayakar
DW-2 : S.Narasinga Rao
DW-3 : B.Sudeendranath
Plaintiff's side in OS No.331/2006:
PW-1 : Guruprasad.N Defendant's side in OS No.331/2006:
DW-1 : Nilima II. List of documents exhibited on behalf of :
a) Plaintiff's side in OS No.216/2007:
Ex.P.1 : Certified Copy of the gift deed dated 24.11.2001 Ex.P.2 : Original medical examination report dated 20.01.1995 issued by Manipal North Side Hospital Ex.P.3 : Radiology report dated 28.01.1995 Ex.P.4 : Original Bill dated 02.02.1995 Ex.P.5 : Original Bill dated 03.02.1995 Ex.P.6 : Original Hematology and Bio Chemistry Report Ex.P.7 : Original letter dated 23.08.2002 Ex.P.8 : Original letter dated 13.09.2007 Ex.P.9 : Original Operation notes dated 13.03.1997 Ex.P.10 : Original discharge record dated 20.03.1997 Ex.P.11 : Original radiology report
b) defendants side in OS No.216/2007 :
Ex.D.1 : Registered Gift Deed dated 24.11.2001 Ex.D.2 : Rectification deed dated 17.11.2003
c) Plaintiff's side in OS No.325/2016:
O.S.216/2007 C/w 331/2006 42 Ex.P.1 : Copy of legal notice Ex.P.2 : Certified Copy of registered settlement deed dated 20.11.1974 Ex.P.3 : Office copy of legal notice Ex.P.4 & 5 : Postal Receipts Ex.P.6 & 7 : Postal Acknowledgments
d) defendants side in OS No.325/2016 :
Ex.D.1 : Certified copy of the partition deed dated 22.02.1929 Ex.D.2 : Certified copy of the settlement deed Ex.D.3 : Certified copy of the registered gift deed dated 24.11.2001 Ex.D.4 : Certified copy of rectification deed dated 17.11.2003 Ex.D.5 : Khatha Certificate Ex.D.6 to 11 : Six tax paid receipts (S.R.MANIKYA) LXI Addl. City Civil & Sessions Judge, Bangalore.
26.08.2020 P- N.J.R. D1-Dead D2- B.K.M. D3-M.S.G Since, both the suits have been clubbed together and common judgment has been passed and two sets of judgment has been taken print out in green paper and original judgment is kept in OS No.216/2007 and copy of the same is kept in OS No.331/2006.
O.S.216/2007 C/w 331/2006 43 Judgment Pronounced In Open Court Vide Separate Typed Order The suit of the plaintiff in OS No.216/2007 is here by decreed in part with costs.
The gift deed dated 24.11.2001 registered as document No.4145/01-02 is not binding on the plaintiff.
Further, the khatha transfer made in respect of the schedule property in favour of 3rd defendant is also declared as illegal and improper.
However the relief of injunction is hereby negatived.
Draw decree accordingly. The suit of the plaintiff in OS No.331/2006 is hereby decreed in part.
The plaintiffs are entitled for 1/3rd share in the suit schedule property by metes and bounds.
The relief of injunction claimed in the suit is here by negatived.
Draw preliminary decree granting three months time.
O.S.216/2007 C/w 331/2006 44 (S.R.MANIKYA) LXI Addl. City Civil & Sessions Judge, Bangalore