Bangalore District Court
Sri Ashok Kumar vs Sri Anand Bhandari on 28 September, 2021
IN THE COURT OF THE X ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-26).
Dated this the 28th day of September 2021
Present
Smt. SAVITRI SHIVAPUTRA KUJJI, B.Com., LL.B.(Spl.),
X Addl. City Civil & Sessions Judge,
Bangalore.
O.S.No.6068/2012
Plaintiff: Sri Ashok Kumar
s/o Radhakishan Das
aged about 68 years
r/at No.20, 'Ashirwad'
3rd Block, 9th Main
Jayanagar, Bengaluru-560 011.
(Dead by his LRs)
1(a) Smt.Shanthi Ashok
w/o Late Ashok Kumar
aged about 63 years
1(b) Sri Roshan Ashok
s/o Late Ashok Kumar
aged about 43 years
1(c) Smt.Shrradha Ashok
d/o Late Ashok Kumar
aged about 36 years
All are r/at r/at No.20/1,
3rd Floor, 9th Main, 3rd Block
Jayanagar, Bengaluru-560 011.
1(d) Smt.Sheetal Chabria
d/o Late Ashok Kumar
aged about 45 years
r/at No.12, Guru Krupa
Opposite Staff Gate of
Le-Meridian, Cunningham
2 O.S.No.6068/2012
Road, Bengaluru-560 052.
(By Mr.Afzal Khan, Adv.)
V/s
Defendant: Sri Anand Bhandari
s/o B.G. Bhandari
aged about 42 years
r/at No.25, 'Anand Nivas'
3rd Cross, 5th Main
Gandhinagar
Bengaluru-560 009.
(By Sri D.R. Ravishankar, Adv.)
Date of institution of the suit 24.08.2012
Nature of the suit For declaration,
ejectment and mesne
profits
Date of the commencement 02.02.2016
of recording of evidence
Date on which the judgment 28.09.2021
Pronounced
Total duration Years Months Days
09 01 04
JUDGMENT
This suit was filed by the deceased plaintiff seeking the relief of declaration and ejectment of the defendant from the suit schedule property along with future mesne profits.
2. The brief facts leading to the plaintiff's case are summarized as under:-
3 O.S.No.6068/2012
The subject matter of the suit is detailed in schedule of the plaint which is said to be an immoveable property bearing No.20/1 situate in Jayanagar, Bengaluru. The plaintiff submits that the entire schedule property was originally belonging to one Sri Tikamdas Khubchand who is the grand-father of the plaintiff which he had acquired pursuant to the allotment made by CITB. It is further stated that the said Tikamdas Khubchand died intestate and after his death in view of family settlement arrived at between his legal heirs the entire schedule property was acquired by the plaintiff and his son Sri Roshan Ashok. It has been further stated that the plaintiff was residing along with his family members since 1968 in Gandhinagar, Bengaluru. It is further stated that in the year 1992 the defendant compelled the plaintiff out of acquaintance with him to permit him to occupy a shop on the ground floor in premises No.17/1 at Gandhinagar and thereafter started coercing and influencing the plaintiff that he being the well-wisher of the plaintiff's family will manage the affairs of the property at Gandhinagar and also the suit schedule property by getting necessary finance required for the development of both the properties by way of new construction. It is further urged 4 O.S.No.6068/2012 that after some times the plaintiff had developed depression and was mentally ill which had compelled him to discontinue his practice as an advocate and he was not in a position to know the motive of the defendant and permitted him to occupy portion of the shop premises in 17/1 in Gandhinagar without any rent. It is however stated that thereafter the plaintiff was in total control of the defendant and was blindly believing his words and acting at the advise of the defendant. It is further urged that during the year 1990-91 the plaintiff was in need of money for putting up construction in Gandhinagar as well as in Jayanagar properties and at that time defendant had promised him that he would negotiate with some financial institutions and get finance to the plaintiff to the tune of about Rs.50 to 60 lakhs and asked the plaintiff and his family members to give some blank undated duly signed cheque leaves and pronotes and other documents so as to enable him to arrange for finance and thereafter he did not get any loan but went on postponing the same whenever the plaintiff asked him. It is further stated that thereafter the health condition of the plaintiff started deteriorating and his mind was not stable and he was not in a position to understand the wordly transactions. It is 5 O.S.No.6068/2012 further alleged that in the month of January 2004 when the plaintiff pressurized the defendant to return the blank signed cheques, pronotes and other stamp papers as he failed to arrange for loan, the defendant without complying with the said demand started threatening the plaintiff stating that he would initiate legal recovery proceedings against him by mis-using those blank signed cheque leaves and pronotes. It has been further stated that when the plaintiff was fully depressed and was under
his total control, the defendant set up a WILL stating that the plaintiff's father had executed the said WILL on
03.02.1988 in respect of Gandhinagar property and thereby misrepresented the plaintiff to believe that his father Radha Kishan Das executed the alleged WILL which was with one Pratap Singh and compelled the plaintiff to file P & SC to obtain probate of the alleged WILL in respect of the said property and got the order in P & SC No.128/2004. It is further alleged that the defendant obtained the plaintiff's signature and signatures of some of his family members on blank stamp papers for the purpose of getting loan but misused the same and got the order which is under challenge by playing fraud, coercion and undue influence on the plaintiff. It is further 6 O.S.No.6068/2012 alleged that after obtaining orders in P & SC No.128/2004 and grant of probate and execution of certain documents by the plaintiff and his family members, the plaintiff was not mentally sound and was not in a position to understand the implications and under such circumstances the defendant compelled him to get order in his favour in the above said P & SC proceeding and took control of the Gandhinagar property. It is further stated that thereafter the plaintiff underwent brain surgery in the year 2005 and after the said surgery his health started improving and he started understanding the worldly affairs and returned to normalcy. It is further alleged that during this period when the plaintiff was under influence of the defendant, his son Roshan was staying in Mumbai and was unaware of the affairs of the properties at Gandhinagar and Jayanagar and the daughter of the plaintiff was also studying and was not knowing about the said facts. It is further stated that when the plaintiff became little normal in the year 2007 his son Roshan started demanding the affairs of the said properties, but the plaintiff was not in a position to answer the same and thereafter there was a big fight between them and on verification the plaintiff came to 7 O.S.No.6068/2012 know that the defendant had played fraud on him in obtaining the orders in P & SC 128/2004. It is further stated that the son and daughter of the plaintiff then filed O.S.No.5763/2008 and Misc.No.573/2009 against the defendant to which the plaintiff filed written statement and objections bringing the true facts to the notice of the Court and both the cases are now pending consideration. It is further alleged that the plaintiff was under the complete control of the defendant who had misrepresented him and got the basement portion of the suit schedule property on a long lease of 99 years by compelling the plaintiff to execute a registered lease deed dated 21.07.2004 in his favour showing that the defendant had paid a meager amount of Rs.10,00,000/- and yearly rental of Rs.1,000/- though the property if let out to other tenants, would have fetched a total security deposit amount of Rs.50,00,000/- and monthly rental of Rs.30,000/-. It is further alleged that after taking possession of the schedule property, the defendant let out the said portion to a tenant on higher advance amount and is collecting heavy rental from the said tenant who is running a furniture show room in the said premises. It is further stated that after coming to know 8 O.S.No.6068/2012 about the fraud played by the defendant and after obtaining the certified copy of the alleged lease deed he came to know about the misdeeds of the defendant and in the said lease deed it is mentioned that the defendant shall bear yearly rental of Rs.1,000/- and pay property taxes and cesses and maintenance charges with respect to suit schedule property and also bear all electricity and water charges but factually he has not at all paid any taxes, maintenance charges or other dues to any department right from the date of execution of the alleged lease deed nor paid any rental to the plaintiff and as such the alleged registered lease deed is not executed by the plaintiff out of his own free will but the same is got executed by the defendant by playing fraud, undue influence and coercion and as such the said lease deed being void is unenforceable in law and not binding on the plaintiff. It is further alleged that the said lease deed is also not acted upon by the parties and has no force of law which is a sham and nominal document and as such it does not create any relationship of landlord and tenant between the parties. It is further alleged that the possession of the defendant over the schedule property is that of a trespasser and not a tenant and he is liable to 9 O.S.No.6068/2012 pay damages to the plaintiff from the date of his occupation till he vacates and hands over the vacant possession of the said premises to the plaintiff. It is further alleged that the alleged registered lease deed dated 21.07.2004 has been obtained by way of fraud, misrepresentation, undue influence etc. It is further urged that in order to eject the defendant he got issued a legal notice dated 30.08.2011 terminating the illegal occupancy of the defendant and requesting him to vacate and hand over the vacant possession of 'A' schedule premises to him and to pay damages for his illegal occupation and the said notice was duly served upon him, but inspite of service of the said legal notice he has neither replied to the same nor has complied with the demand made by the plaintiff in the said notice and hence the plaintiff has to come up with the present suit. The plaintiff has further alleged that the defendant having remained in illegal possession of the schedule 'A' premises, has illegally let it out to a tenant by name Royal Interior on a monthly rental of Rs.35,000/- and has received huge advance amount of Rs.3,50,000/- and enjoying the said premises which he is liable to reimburse the said amount to the plaintiff. It is further alleged that 10 O.S.No.6068/2012 the defendant is liable to pay damages to the plaintiff @ Rs.45,000/- per month from 21.07.2004 till he vacates and hands over the possession of the schedule premises to him and the amount of Rs.10,00,000/- allegedly paid to the plaintiff as shown in the alleged lease deed has to be deducted from the amount of damages payable by the defendant and it is further alleged that he is also liable to pay a sum of Rs.5,00,000/- towards illegal consumption of electricity in 'A' schedule premises and to pay Rs.1,25,000/- towards water consumption charges from 21.07.2004 till the end of July 2011 and property tax that has been paid by the plaintiff and thereafter the plaintiff said to have disconnected the water and electricity meters to the 'A' schedule premises. For these reasons the plaintiff has sought for declaration that the alleged registered lease deed dated 21.07.2004 is null and void and not binding on him and for ejectment of the defendant from 'A' schedule premises and for future mesne profits from the defendant and hence the suit.
3. In pursuance of service of suit summons, the defendant entered his appearance through his counsel and filed his written statement denying the claim of the plaintiff. The fact that the schedule property was initially 11 O.S.No.6068/2012 purchased by Radha Kishan Das under sale deed dated 05.04.1968 and that the property stood in his name till his death on 19.06.1989 has not been denied by the defendant. It is contended that even on 19.06.1989 or any time thereafter the plaintiff never came up with the plea that this property was acquired out of the joint family funds, but on the other hand he permitted the khatha to be transferred in his name as having succeeded to the estate of late Radha Kishan Das. It is contended that the plaintiff has admitted that the defendant was acquainted with his family. It is further contended by the defendant that after the death of Radha Kishan Das and even during his life time the plaintiff had borrowed huge loan amount from various bank mortgaging the property and since from 1993 the plaintiff and his family started borrowing money from this defendant to discharge the loan amount and to pay interest as they had received huge amount from him by executing written documents. It is further contended that the plaintiff also authorized the defendant to let out the premises along with his wife in the suit property and to collect the rental and the plaintiff's wife all along was assisting the defendant in managing the property. It is 12 O.S.No.6068/2012 further contended that during the year 2004 the plaintiff who was a practicing advocate attending couple of cases and who had by then put in about 35 years of practice had informed that his father had left behind him a WILL and the same has been traced out and according to the WILL he was appointed as executor and the beneficiary being the defendant and the plaintiff, his wife and children requested the defendant to come up the huge loan amount in lieu of the WILL. The defendant has further contended that the plaintiff himself filed P & SC by engaging advocate and when the petition was filed the plaintiff and defendant by way of filing declaratory affidavits dated 03.07.2004 about the genuineness of the WILL and the WILL was binding on her. It is further stated that the daughter of the plaintiff had also sworn to an affidavit in the same terms and a special power of attorney was also executed by the plaintiff, his wife and children on 03.07.2004 and execution of these documents has been admitted before the Notary Public and a joint declaration was also executed by them admitting the genuineness of the WILL executed by Radha Kishan Das and as per the WILL the defendant is legatee and beneficiary and none of the family members 13 O.S.No.6068/2012 had any objections for the defendant succeeding by testamentary succession to the property described under the WILL. It is further contended that separate declaratory affidavits were also executed by all the parties on the same day indicating that the plaintiff and his family members had conceded to the fact that the WILL was executed by late Radha Kishan Das when he was in a sound disposing state of mind by appointing plaintiff as executor and that they have no objections to file any necessary applications to give effect to the WILL including obtaining of probate. The defendant has contended that it is only to indicate that the plaintiff's family was aware of the WILL, they had specifically authorized the plaintiff under the joint declaration to present necessary application to obtain letters of administration or the probate. It is further contended that thereafter the plaintiff executed memorandum of understanding attorning the tenancy of all the tenants and also the mortgagees under a separate document dated 12.06.2004 and also addressed separate letters to the tenants attorning the tenancy or the mortgage and since then most of the tenants have been paying rental to the defendant and the lease of some of the tenants 14 O.S.No.6068/2012 having expired they have entered into fresh tenancy with him. He has further contended that at the time of attornment the plaintiff owed a sum of Rs.85,50,000/- to the mortgagees with whom he had entered into mortgage transaction by receiving advance amount and this defendant said to have taken over the liability to discharge those amounts and accordingly he has discharged some of the mortgage amounts except 3 occupants and took possession of the respective portions by spending huge amount. It is further contended that it is only thereafter the defendant started acting as the owner of the schedule property by collecting monthly rental which is the indicative of the fact regarding the plaintiff's attornment. Further it is contended that because the plaintiff was mentally sound he himself had initiated the probate proceedings which process was a long drawn one from the date of filing on 19.07.2004 till the date of order dated 26.10.2008 and thereafter the letters of administration was obtained and necessary changes of khatha have been effected in the year 2005-
06. He also claims to have paid upto date taxes pertaining to schedule property along with electricity, water bills, etc., and enjoyed the properties for over 9 15 O.S.No.6068/2012 years and therefore any person claiming interest in the property is deemed to have notice of the fact that letter of administration was issued in the year 2004-05 and the express declaration regarding the genuineness of WILL and empowerment of the plaintiff who secured letter of administration with due knowledge. Thus it is contended that by his own conduct the plaintiff has waived and acquiesced his right if at all claiming interest in the suit property. It is contended that being a party to all those earlier proceedings and subsequent events the plaintiff has played fraud on the Court and therefore he is not entitled to claim any relief on merits, but he said to have instigated his children to file O.S.No.5763/2008 though they had no locus-standi to seek for cancellation of letter of administration issued. It is denied that the plaintiff underwent surgery and suffered other ailments, etc., as alleged in the plaint. It is contended that while purchasing the property No.17/1 late Radha Kishan Das has paid an amount approximately of Rs.1,22,000/- towards sale consideration but factually in the registration the sale value was shown less and he had no sufficient funds to pay the sale proceeds and accordingly defendant's father who was very close family friend of 16 O.S.No.6068/2012 Radha Kishan Das contributed a major portion of the sale proceeds and thereafter the properties came to be registered in two parts. It is further contended that the plaintiff and his family members were in the habit of making lavish expenses by borrowing money from outsiders for their personal benefits and accordingly the plaintiff has borrowed huge loan amount from private finances, started demanding repayment and late Radha Kishan Das out of his hard earned money was able to discharge portion of the loan amount and he obtained release deed in respect of property bearing No.17/1 from the plaintiff. It is further contended that in the year 1990 the plaintiff in order to meet his personal expenses started requesting the defendant for immediate finance and the defendant through his father paid the said amount and as the defendant's father had contributed towards purchase of the property the defendant insisted the plaintiff to make him as co-landlord in all tenancy transactions and accordingly the plaintiff started transacting through this defendant and his wife and hence the defendant was collecting his share of rent from the respective tenants through the plaintiff's wife. It is further contended that in the year 2000 the plaintiff 17 O.S.No.6068/2012 started borrowing loan from bank and to discharge the interest amount and installments he borrowed hand loan from the defendant by executing documents and deposited title deeds of the suit schedule property as security and after the death of his father the plaintiff and his family members started treating the defendant as one of the co-owners of the property Nos.17/1 and 17. It is further stated that in the year 2000 there was family partition with respect to the suit schedule properties which was allotted to the plaintiff and his son subject to the condition that the plaintiff shall pay a sum of Rs.7,50,000/- to all the co-sharers to release the respective shares and during that time as he had no money to pay he borrowed the said amount from this defendant and paid the amount to the respective share holders by executing documents in favour of the defendant. The defendant has further contended that the plaintiff had even borrowed amount from Ratnakar Bank by paying interest and after obtaining the schedule property which consisted of an old house in the year 2001 the plaintiff put up additional construction by availing loan from banks and private parties including this defendant who paid him Rs.20,00,000/- for the said 18 O.S.No.6068/2012 construction under an oral agreement with the plaintiff to sell the suit premises to the defendant. It is further contended that the plaintiff entered into a similar agreement with M/s DHFL Vysya Bank to let out the mezzanine floor and after the construction the defendant insisted him to execute a registered sale deed in respect of schedule premises, but the plaintiff informed him that all the original documents were pledged with the bank when he borrowed the loan. It is further contended that due to the non-availability of original documents, the plaintiff being a practicing advocate insisted the defendant to obtain a registered perpetual lease deed informing that the said transfer would assure permanent title to the suit property and promised the defendant to execute registered sale deed in due course and accordingly the defendant while paying the stamp duty and registration charges on the mortgage value of the schedule premises, got registered the perpetual lease deed in his name and started enjoying the suit schedule property as its absolute owner and not as a lessee and the suit schedule property was valued at Rs.17,00,000/- on which he paid the stamp duty. It is further contended that the plaintiff at the time of availing loan from Vysya 19 O.S.No.6068/2012 Bank made this defendant and one Muniramaiah as a sureties and in the year 2004 the defendant learnt about borrowing of loan by the plaintiff from various banks and also got clarified the same through the plaintiff and gave a letter to the bank to discharge him from acting as the surety to avoid future consequences. It is further contended that in the year 2007 the said Muniramaiah in property No.17 and 17/1 who was also running a business opted to sub-lease the premises to run a restaurant business for which the defendant objected, but inspite of it by obtaining licence he was successful for which the defendant filed WP and obtained cancellation order of the licence and also filed suit for redemption of mortgage and possession against the said Muniramaiah which matter is still pending. It is the counter allegation of the defendant that it is the said Muniramaiah who has instigated the plaintiff to institute legal proceedings against him to harass this defendant. It is further alleged that the plaintiff is in the habit of depriving his well-wishers as for as many matters is concerned and even his family members are acting as per his advise. It is further alleged that since from the date of taking of possession there is no supply of electricity and water to the schedule 20 O.S.No.6068/2012 premises though he had paid the said charges to the plaintiff and spent huge amount to both the properties. He has also questioned the correctness of valuation of the suit reliefs and payment of Court fee by the plaintiff. For these reasons, the defendant has sought for dismissal of the suit.
4. On the rival contentions of the parties, the following issues have been framed:-
1) Whether the plaintiff proves that the registered lease deed dt:21.7.2004 in respect of schedule 'A' property is obtained by the defendant by force, undue influence and coercion?
2) Whether plaintiff proves that said lease deed is sham, null and void and not binding upon him?
3) Whether the plaintiff proves the occupation of schedule 'A' property by the defendant is illegal?
4) Whether the plaintiff is entitled for
recovery of possession of schedule 'A'
property from defendant and other
tenants under him?
5) Whether plaintiff is entitled for the past and future mesne profits?
6) What decree or order?21 O.S.No.6068/2012
5. To substantiate his claim the plaintiff has deposed before the Court as P.W.1 and he has produced as many as 16 documents marked from Ex.P.1 to Ex.P.16. After the death of plaintiff his wife as his legal heir deposed before the Court as P.W.2. Per contra the defendant has deposed before the Court as D.W.1 and he has relied on two documents marked at Ex.D.1 & Ex.D.2.
6. Heard arguments.
7. On hearing and on perusal of the relevant materials and on appreciation of the evidence on record, my findings on the above 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 affirmative ISSUE No.5:- In the affirmative ISSUE No.6:- As per final order, for the following:-
REASONS
8. ISSUE Nos.1 & 2:- Since both these issues are interconnected, they are tried together to avoid repetition of facts. It is the main allegation of the deceased plaintiff and also his L.Rs the present plaintiffs 22 O.S.No.6068/2012 that the defendant who was closely acquainted with the deceased plaintiff and his family was permitted to occupy the ground floor in premises No. 17/1 of Gandhinagar. It is their further allegation that when the health condition of the deceased plaintiff was deteriorating due to mental stress and was in acute financial crisis the defendant taking advantage of this situation, coerced the deceased plaintiff and by assuring that he would arrange for finance for the plaintiff for putting up construction in Gandhinagar as well as in the suit properties, he obtained some blank undated signed cheques, pronotes and other documents from the deceased plaintiff and though later on he did not arrange for money, but misused the said documents.
9. It is the further allegation of the deceased plaintiff that subsequently the defendant got created a Will dtd.03/02/1988 purported to have been executed by the plaintiff's father in his favour with respect to Gandhinagar property and thereby compelled the plaintiff to obtain Probate for the said Will in P & S.C 128/2004. It is urged that after coming to know about the fraud played by the defendant, the children of the deceased plaintiff filed Misc. seeking for cancellation of the said Probate 23 O.S.No.6068/2012 which is pending. However, it is to be noted that the subject matter of the present suit is not the said disputed Will as the property involved in this suit is different than the property covered under the said Will. In the present suit, the plaintiffs are required to prove as to how the defendant has got created the disputed Lease Deed and how this deed came into existence under forced circumstances as alleged in the plaint.
10. To substantiate the claim of the plaintiff, initially the deceased plaintiff had deposed before the Court as P.W.1 and he got marked 16 documents from Ex.P.1 to Ex.P.16. After his death his wife i.e., the present plaintiff No.1(a) has been examined as P.W.2. As regards the documents relied on by P.W.1 & 2, they include the medical records of P.W.1 which are marked from Ex.P.1 & P.2. As regards Ex.P.3, it is the certified copy of the deposition of the present defendant in O.S.No.4202/2009 which he had filed against one of the sub-tenants under him. As regards Ex.P.4, it is the certified copy of the order sheet in O.S.No.26824/2012 which was also filed by the present defendant against one Shabir Pasha for ejectment as he was also said to be a sub-tenant under him. Ex.P.5 is the certified copy of the plaint in the said 24 O.S.No.6068/2012 suit, Ex.P.6 is the certified copy of the written statement of the said Shabir Pasha in the said suit.
11. As regards Ex.P.7, it is the certified copy of the deposition of the present defendant in the said suit. Ex.P.8 is the material document in this case which is the disputed lease deed relied on by the defendant allegedly entered into between himself and the deceased plaintiff with respect to the schedule property. P.W.1 has also produced the office copy of the legal notice issued by him to the defendant marked at Ex.P.9 calling upon him to quit and hand over the possession of the schedule property to him. Ex.P.11 & P.10 are the postal receipts and Ex.P.12 is the postal AD slip for having issued the said notice.
12. As regards Ex.P.13, it is the certified copy of the plaint in O.S.No.5763/2008 which was filed by the present plaintiff No.1(b) & 1(c) against the deceased plaintiff, the defendant and another for the relief of declaration of their 1/3rd share in the schedule property and for mesne profits. As regards Ex.P.14, it is the certified copy of the written statement filed in that case by the present defendant. As regards Ex.P.15, it is the certified cop of the petition filed by the LRs of deceased 25 O.S.No.6068/2012 plaintiff in P & SC No.128/2004 questioning the legality of the probate obtained by the present defendant and deceased plaintiff. Ex.P.16 is the copy of objection statement filed by the present defendant in the P & SC proceeding.
13. As against the oral and documentary evidence relied on by the plaintiffs, the defendant has also deposed before the Court as D.W.1 and he has relied on 2 documents marked at Ex.D.1 & D.2. Ex.D.1 is the same lease deed relied on by him which is produced by the plaintiff at Ex.P.8. As regards Ex.D.2, it is the copy of bank statement of account of D.W.1 which is produced to show that he had made payments to the deceased plaintiff. In the backdrop of this oral and documentary evidence placed before the Court by both the parties, now it is to be seen whether the plaintiffs could prove that Ex.P.8 (Ex.D.1) is the result of the fraudulent acts of the D.W.1.
14. It is not in dispute that the schedule property originally belonged to the deceased plaintiff which he had acquired in a family partition between himself and his father. It is also not denied by the D.W.1 that except Ex.P.8 he had no other records to assert his right over the schedule property. In his oral testimony P.W.1 has 26 O.S.No.6068/2012 reiterated as to how he was influenced by D.W.1 and how D.W.1 by developing intimacy with him, got created fraudulent documents including Ex.P.8. As discussed supra the issue with regard to D.W.1 obtaining probate and asserting his right over the other family property of the plaintiffs by virtue of the disputed WILL is not required to be considered in this case as it is the subject matter of the other litigations which are already pending between the parties. The Court in this case has to merely consider whether Ex.P.8 (Ex.D.1) is the outcome of the fraudulent acts of D.W.1 as alleged by the plaintiffs.
15. The learned counsel for plaintiffs vehemently urged that undisputedly the deceased plaintiff was not having a good health and at some point of time he had gone in depression severely because of the financial crisis and also because of the mis-deeds and acts of D.W.1. It is the main allegation of P.W.1 and also by his legal heirs that D.W.1 who was acquainted with their family developed intimacy with him and he being the resident of the same locality where the plaintiffs were residing in Gandhinagar at the instance of D.W.1, deceased plaintiff permitted him to occupy a shop in the ground floor of premise No.17/1 situate at Gandhinagar, 27 O.S.No.6068/2012 Bengaluru and thereby D.W.1 assured him that he would look after the said property and also the suit schedule property by getting the necessary finance required for the development of these properties and at that time P.W.1 was severely in depression and his mental condition was not stable which had compelled him to discontinue his practice as an advocate and thereby he was under
the total control of D.W.1 blindly believing his words. It is further alleged that during the year 1990-91 as he was in need of finance to put up construction in the above said two properties, D.W.1 assured him that he would arrange finance from some financial institutions and thereby obtained the signatures of P.W.1 and his family members on some blank cheque leaves, pronotes and other bond papers but he did not arrange for finance and in the month of January 2004 when the deceased plaintiff pressurized him to return those blank signed documents to him, D.W.1 alleged to have started blackmailing him stating that he would file case against him by using those cheques and pro-notes.
16. The other allegations of the plaintiff go to show that even D.W.1 got created a disputed WILL stated above, dated 03.02.1998 with respect to Gandhinagar 28 O.S.No.6068/2012 property and made P.W.1 file P & SC and was successful in obtaining probate and on coming to know about his fraudulent acts, the present plaintiff Nos.1(b) & 1(c) filed suit for partition against their father with respect of these properties and also filed another case seeking cancellation of the said probate. As regards the subject matter of the present litigation i.e., the suit schedule property, it is the specific allegation of P.W.1 that subsequently D.W.1 pressurized him to execute a lease deed dated 21.07.2004 as per Ex.P.8 (Ex.D.1) thereby showing a meager amount of Rs.10,00,000/- as the lease amount and oral rent of Rs.1,000/- even though the suit schedule property was worth fetching deposit amount of more than Rs.50,00,000/- with a monthly rental of Rs.30,000/- and D.W.1 was also successful in getting registered the said document and in subletting portion of the schedule property to other tenants on huge rental amount.
17. Thus, what could be gathered from the plaint allegations and the statement of P.W.1 in his oral evidence is that though D.W.1 got executed Ex.P.8- lease deed from him but there was no intention on the part of P.W.1 to execute this lease deed and it was never 29 O.S.No.6068/2012 intended to be acted upon by the parties since it was the outcome of the fraud, misrepresentation and coercion exercised by D.W.1 against him and therefore this lease deed is null and void. To substantiate these allegations P.W.1 has relied on his medical records which are produced at Ex.P.1 & P.2.
18. Ex.P.1- discharge summary of Ramakrishna Hospital shows that P.W.1 was admitted as an in-patient in the said hospital and was treated from 16.03.2005 till 29.03.2005 and it was shown that he was suffering from diabetes and had other health related issues. Even it was stated that due to weakness of numbness of left half of the body, left leg, he was prevented from carrying on his daily routine work and there has been a tendency to fall to the left. As regards Ex.P.2, it is the subsequent discharge summary of P.W.1 which once again reveal that he was treated as an inpatient in Wokhardt hospital from 14.03.2009 till 03.04.2009 and was subjected to operation on 28.03.2009. Even the same history is found in Ex.P.2. These medical records of P.W.1 are not specifically disputed by D.W.1.
19. However the learned counsel for the defendant in his written argument, has vehemently urged 30 O.S.No.6068/2012 that from Ex.P1 and P2 it cannot be conclusively ascertained that P.W.1 was suffering from any serious kind of illness nor it could be said that his mental condition was not stable and it cannot be said that he was not conscious of executing any documents due to his illness. On the contrary it is contended on behalf of D.W.1 that Ex.P.8 (Ex.D.1) was executed by P.W.1 when he was in a sound disposing mental condition and he was fully conscious about the execution of this document and therefore the allegations of the plaintiffs that Ex.P.8 was brought into existence under any such forced circumstances by D.W.1 cannot be sustained. In view of these rival contentions heavy burden is cast on the plaintiffs to substantiate as to how Ex.P.8 is a fraudulent document never intended to be acted upon by the parties.
20. The learned counsel for the plaintiffs has also argued that there cannot be a 99 years lease as per Ex.P.8. P.W.2 who is none other than the wife of P.W.1 has also reiterated in her evidence that due to the close intimacy developed with D.W.1, her husband deceased plaintiff was under the complete control of D.W.1 who used to pressurize him to sign on several blank signed 31 O.S.No.6068/2012 documents and subsequently mis-used the same to create Ex.P.8- lease deed. Even she has deposed as to the mental condition of the deceased plaintiff and other health related issues which had deteriorated his health during the period when Ex.P.8 was brought into existence.
21. It is material to note that there is no specific denial by the present plaintiffs including the deceased P.W.1 that D.W.1 has paid Rs.10,00,000/- to P.W.1. This fact is also reflected in Ex.D.2 statement of account produced by D.W.1. However it is the specific statement of P.W.2 that on going through the records she came to know that there was a transaction of Rs.10,00,000/- between her deceased husband and D.W.1 but she do not know the nature of the said transaction. On the contrary it is the specific defence of D.W.1 that the said amount of Rs.10,00,000/- was the same lease amount which is included in Ex.P.8- lease deed.
22. On the plain reading of this document it is shown that P.W.1 as the lessor and D.W.1 as the lessee entered into this lease deed for a consideration of Rs.10,00,000/- by leasing out the schedule property to D.W.1 for a period of 99 years and the details of payment of the said amount of Rs.10,00,000/- by D.W.1 are also 32 O.S.No.6068/2012 mentioned in this document. It is also shown that the parties had agreed with regard to payment of annual rent of Rs.1,000/- by the lessee with an agreement to pay the enhanced rent @ 5% at the end of every 15 years. The other terms and conditions are also shown to have been incorporated in this lease deed. The fact that by virtue of Ex.P.8- lease deed D.W.1 entered into possession of the schedule property is also not denied by the plaintiffs. However by alleging that as this document being a fraudulent document, does not convey any legal right over D.W.1, it is urged that his possession over the schedule property is illegal and an unlawful possession which could be legally recovered by the plaintiffs.
23. The learned counsel for plaintiffs vehemently argued that though the deceased plaintiff had signed on Ex.P.8 (Ex.D.1) and the possession of the schedule property was handed over to D.W.1, but this document has come into existence by playing fraud and coercion by D.W.1. This allegation has been categorically denied by D.W.1 according to whom the deceased plaintiff had entered into this lease agreement consciously and while he was in a sound mental condition. The learned defence counsel has also vehemently urged that moreover this 33 O.S.No.6068/2012 document is a registered deed which raises presumption regarding its authenticity and genuineness. In view of these rival submissions made by the counsels during the court of their arguments, now it is to be seen whether this document has come into existence under any such forced circumstances as alleged by the plaintiffs or whether the deceased plaintiff had voluntarily leased out the schedule premises to P.W.1 under this document for a period of 99 years.
24. The learned defence counsel has also argued to the effect that the allegations of fraud, coercion or misrepresentation made by the plaintiffs cannot be sustained for the reason that there are no requisite pleadings in this regard. In other words it has been submitted that the plaint is totally silent as to the pleas of fraud, misrepresentation, coercion, etc., as required to be pleaded U/O VI Rule 4 CPC. By countering this argument of the defence counsel, learned counsel for plaintiffs has also invited my attention to paras-5 to 20 of the plaint. By referring to these pleadings, the plaintiffs' counsel submitted that there are requisite pleas with regard to the fraud committed by D.W.1 in getting executed Ex.P.8. 34 O.S.No.6068/2012
25. In para-5 of the paint the deceased plaintiff had alleged that after some times he developed depression and was suffering from mental illness which had compelled him to discontinue his advocacy and he was not in a position to know the motive of the defendant in getting close to him and offering help to the deceased plaintiff and therefore the plaintiff permitted him to occupy the shop premises situate in Gandhinagar without any rent. Again in para-6 it is submitted that due to the mental illness of the deceased plaintiff he came under complete total control of the defendant thereby blindly believing his version and started acting as per the advise of D.W.1.
26. Again in para-7 it is pleaded that during the year 1990-91 P.W.1 was in need of finance for the purpose of putting up construction in the schedule property as well as in the property situate in Gandhinagar and at that time D.W.1 assured him of arranging finance to the tune of Rs.50 to Rs.60 lakhs and thereby obtained some blank signed cheques, pro-notes and other bond papers from P.W.1, but failed to arrange for finance as assured by him and because of the deteriorating health condition of P.W.1, he was not in a position to understand 35 O.S.No.6068/2012 the worldly transactions and thereafter when he insisted D.W.1 to return those cheques and other documents obtained by him, D.W.1 started blackmailing him. Again in para-8 of the plaint it is pleaded that during the year 2004 P.W.1 was under full depression and under the control of D.W.1 and thereafter D.W.1 set up the disputed WILL dated 03.02.1988 alleged to have been executed by plaintiffs' father in his favour and once again by pressurizing P.W.1 and his family members, D.W.1 was successful in obtaining orders in P & SC No.128/2004 for grant of probate.
27. If we peruse further pleadings of the plaintiff in para-11, it is once again alleged that after obtaining probate in P & SC No.128/2004 D.W.1 illegally got control of Gandhinagar property and at that time P.W.1 underwent brain surgery in the year 2005 and thereafter when he was recovering from his illness he came to know about the coercion and fraud committed by D.W.1 and in that regard his son and daughter also came to know about this aspect and they started demanding their share in the schedule property and when they came to know about the fraud committed by D.W.1 in obtaining probate they challenged the same by filing miscellaneous petition 36 O.S.No.6068/2012 and also filed suit claiming partition. The other pleadings once again are with respect to the alleged acts of fraud, misrepresentation by D.W.1 and his getting executed Ex.P.8 for 99 years for a meager lease amount of Rs.10,00,000/- and a meager yearly rent of Rs.1,000/- and all these terms and conditions incorporated in Ex.P.8 were by playing fraud and by pressurizing P.W.1.
28. Thus as rightly pointed out by the plaintiffs' counsel, it cannot be said that the plaint is silent as to the pleas of fraud or misrepresentation, etc. It is further alleged by the plaintiffs that though D.W.1 was successful in getting executed Ex.P.8 lease deed by playing fraud on P.W.1, but it was never acted upon by the parties and as such this deed has no force in the eye of law since P.W.1 was never intended to lease out the schedule premises to D.W.1 under this document for a period of 99 years for such a meager lease amount and meager yearly rental amount. This claim of the plaintiffs certainly holds substance for the simple reason that admittedly the schedule property is situated in the prime locality of Bengaluru and it is also used for commercial purpose which is having a built up area of 1610 sq.fts. Under such circumstances a reasonable suspicion certainly arises as 37 O.S.No.6068/2012 to how P.W.1 would have consciously consented for leasing out this premises situate in such locality for such a meager amount.
29. Therefore as rightly argued by the plaintiffs' counsel, it cannot be said that Ex.P.8 must have come into existence under any such normal circumstances which a prudent man can execute such lease deed. In this regard it would be relevant to refer a decision cited by the learned counsel for plaintiffs which is reported in Hamelo (deceased) by L.R v/s Jang Sher Singh in AIR 2002 Punjab and Haryana 147 wherein under similar set of facts it has been held that "where a plaintiff, a lessor was illiterate old and sick lady from whom the disputed lease deed was got executed and where the facts show that there was no consideration paid for execution of lease for 99 years by showing the annual rental amount of Rs.2,500/-, such lease deed could be held to have come into existence by playing undue influence, fraud and coercion and as such such transaction would be hit by Section 16 of the Contract Act".
30. No doubt in the case involved in the above cited decision the plaintiff therein was said to be an 38 O.S.No.6068/2012 illiterate old and sick lady which is not the circumstance in the present case since P.W.1 herein was not an illiterate but a reputed legal practitioner, but as discussed supra, he was not having a sound physical and mental health as could be borne-out from Ex.P.1 & P.2- medical records. It is not denied by D.W.1 that as per Ex.P.1 & P.2 P.W.1 was under constant medical treatment and had also undergone brain surgery. However the learned defence counsel has also argued that from these medical records it cannot be said that P.W.1 was not in a sound mental condition as these documents do not show that he was suffering from any such acute mental illness. This line of argument canvassed on behalf of D.W.1 cannot be accepted for the reason that Ex.P.1 itself reveals the past history of P.W.1 that he was suffering from diabetes since 26 years and was under treatment.
31. Moreover the other medical records such as the medical documents from Wockhardt hospital also disclose that the status of P.W.1 as on the date of his examination was asymptomatic with medication and even he had a stress. The discharge summary of this hospital dated 03.12.1995 once again reveal that even in the year 1995 P.W.1 had Coronary Artery disease, 39 O.S.No.6068/2012 diabetes mellitus, double vessel disease and even after his discharge he was advised medication. Even the said discharge summary reveals regarding his complaint of defective vision. The Coronary Angio report dated 20.03.2009 once again reveals that he had severe graft disease and he was advised high risk and had artery disease. He had also undergone surgery in the form of grafts.
32. Thus what could be gathered from the plain reading of the above medical records is that even prior to the execution of the disputed lease deed P.W.1 was under
constant medication and had no sound health condition both physical and mental. Even though these documents did not expressly reveal any such mental abnormality of P.W.1, but from these documents which have remained undisputed one aspect stands proved that even as on the date of execution of Ex.P.8- lease deed he was not having a sound health condition.
33. One more material aspect which requires condition at this juncture is that P.W.1 himself had entered into witness box and had deposed to the effect that he was not in a sound mental condition so as to consciously execute Ex.P.8 and his version was further 40 O.S.No.6068/2012 supported by P.W.2 in her evidence who is none other than his wife. In para-1 of the cross-examination of P.W.1 he has categorically deposed that he is challenging Ex.P.8 since it was obtained by D.W.1 by putting him under threat when his mental condition was not in order. He has also deposed that since he was in need of finance, D.W.1 got executed this document.
34. It is further relevant to note that the defence counsel himself has suggested to P.W.1 in his cross- examination in para-2 that Ex.P.1 is the mental condition analysis report of P.W.1. There is no further denial by the defence side that Ex.P.1 discloses false history of his health condition nor Ex.P.1 & P.2 are specifically disputed in his further cross-examination. Even in para-4 of his cross-examination P.W.1 has positively stated that he underwent brain operation in the year 2005. In his cross- examination in para-7 he has once again clearly denied the suggestion of the defence counsel that he had executed Ex.P.8 while he was in a fit mental condition. Therefore from the evidence of P.W.1 also it could safely be inferred that he had not consciously executed Ex.P.8 intending to lease out the schedule premises to D.W.1 for 41 O.S.No.6068/2012 such a meager lease amount and rental amount for a period of 99 years.
35. P.W.2 has also categorically stated even in her cross-examination in para-7 that the defendant came into possession of the premises by force by posing life threat. Under such circumstances it could safely be held that P.W.1 & P.W.2 are the competent witnesses so as to prove the fact that Ex.P.8 was not executed by P.W.1 with his free wish and volition. Therefore by relying on the ratio laid down in the above decision cited by the plaintiffs' counsel it could safely be held that even in the instant case that the very terms and conditions of Ex.P.8- lease deed cannot be believed to have been incorporated while P.W.1 was in a sound health condition.
36. Moreover the very condition in Ex.P8 that it was executed for a period of 99 years on such a meager lease amount and rental amount itself is not reposing any confidence in the mind of this Court to believe that the parties had really intended to act upon it. The same principles are reiterated in the second decision cited by the plaintiffs' counsel reported in Shrimati and others v/s Sudhakar R. Bhatkar and others in AIR 1998 42 O.S.No.6068/2012 BOMBAY 122 which would also aptly apply to the facts on hand.
37. As against the authorities cited by the plaintiffs' counsel as discussed supra, the learned defence counsel has also sought to rely on a decision of the Hon'ble Supreme Court in Shanti Budhiya Vesta Patel and others v/s Nirmala Jayaprakash Tiwari and others in CDJ 2010 SC 367 wherein the Hon'ble Supreme Court while considering genuineness of a power of attorney and with regard to fraud, misrepresentation, etc., held that "it is the plain and basic rule of pleadings that in order to make out a case of fraud or coercion there must be an express allegation of coercion or fraud and all the material facts in support of such allegations must be laid out in full and with a high degree of procession and if coercion or fraud is alleged, it must be set out wit full particulars". The Hon'ble Supreme Court has made these observations by relying on the identical principles laid down in its earlier decision reported in Bishundeo Narain v/s Seiogeni Rai reported in 1951 SCR 548.
38. With due regards to the proposition of law laid down in Bishundeo Narain's case it cannot be said that 43 O.S.No.6068/2012 the same could be extended to the facts on hand for the reason that as discussed supra there are specific pleadings by the deceased plaintiff in the plaint with regard to the fact as to how due to his deteriorating health condition he was not in a position to actively participate in his routine work and how D.W.1 by taking advantage of his position, got control over P.W.1 and was successful in obtaining various fraudulent documents including Ex.P.8. Therefore, the proposition of law laid down in this decision would not help the defence of DW1 in any manner.
39. It is further relevant to note that the plaintiff has specifically stated that the suit schedule property was originally belonging to his grandfather Tikamchand which he acquired from BDA and as he died intestate, subsequently in the family settlement arrived at between his LRs, the suit property was acquired by deceased plaintiff and his son Roshan. This particular claim of P.W.1 found in para-3 of the plaint has not been specifically denied by D.W.1 in his written statement although he has contended in para-2 of his written statement that there is no dispute regarding purchase of the suit schedule property by the plaintiff's father under the registered sale 44 O.S.No.6068/2012 deed dated 05.04.1968. Nowhere the defendant has denied the fact that in the family settlement the schedule property was acquired by P.W.1 and his son. However there is a categorical admission by D.W.1 in para-13 of his written statement that in the family partition the schedule property was given to P.W.1 and his son.
40. Even in his chief examination in para-2 P.W.1 has reiterated the fact that after the death of his grand father the schedule property was acquired by him along with his son and if we peruse the entire cross- examination of P.W.1 nowhere there is any denial with regard to this material aspect by D.W.1. Therefore as regards this claim of P.W.1 that the schedule property was jointly acquired by him and his son in the said family settlement has remained uncontroverted by D.W.1. Under such circumstances now the material issue which emerges for consideration is whether P.W.1 alone could have leased out the suit schedule property to D.W.1 under Ex.P.8 without the consent of his son. There is no satisfactory explanation by D.W1 in this regard. This aspect is one such circumstance which would cast cloud about the genuineness of Ex.P.8.
45 O.S.No.6068/2012
41. It is further relevant to note that even D.W.1 has admitted the fact that the wife and children of P.W.1 have not signed on Ex.P.8 (Ex.D.1). It would be relevant to refer this material piece of admission of D.W.1 which is found in his cross-examination dated 22.03.2019 on page-12 in para-11 which reads thus:-
"Wife and children of deceased plaintiff not signed in Ex.D.1. I do not know whether suit property was allotted to the deceased plaintiff and his son in family partition. As deceased plaintiff himself told that he is the sole owner of the suit schedule property, hence I entered into lease agreement. I do not know to whom suit schedule property originally belongs".
42. The above statement of D.W.1 once again renders Ex.D.1 (Ex.P.8) a suspicious document since there was no concurrence of the son of P.W.1 in executing the Ex.P.8. It is further material to note that even in his cross- examination in para-13 D.W.1 has pleaded ignorance to say whether P.W.1 had executed any other lease deed for 99 years in respect of other tenaments in the suit schedule property. Again this aspect probablises the claim of P.W.1 that he had never intended to lease out the 46 O.S.No.6068/2012 schedule property to D.W.1 for 99 years as claimed by D.W.1.
43. One more material aspect which invites consideration at this juncture is that though D.W.1 had repeatedly contended that since P.W.1 and his family was in acute financial crisis he has extended financial help to P.W.1 on various occasions, but admittedly not a single scrap of paper is finding place in the records to substantiate this claim. In para-11 of his written statement he has contended that in order to discharge the debts of PW1, his father late V.G. Bhandari had paid amount to him and even in para-12 of his written statement he has reiterated that in the year 2000 P.W.1 availed hand loan from him to discharge his debts. Even to prove this aspect no documents are produced before the Court. In his cross-examination in para-4 D.W.1 has pleaded ignorance to say whether P.W.1 was facing financial crisis at any particular point of time. This would falsify his claim that since beginning he was aware of the poor financial condition of P.W.1 and his family.
44. It would be equally relevant to refer the further cross-examination of D.W.1 in para-5 wherein he could not say the alleged total amount which he had paid 47 O.S.No.6068/2012 to P.W.1 as hand loan and so also the amount paid by his father. Except pleading ignorance in this regard he was not able to substantiate the said fact which once again nullifies his contention that he along with his father had extended financial help to P.W.1 from time to time and in furtherance of the same P.W.1 executed Ex.P.8 .
45. It is further relevant to note that even D.W.1 in is cross-examination in para-5 has admitted that he has no document to show the payment of hand loan made to P.W.1 except the receipts. However no such receipts are produced before the Court. Even he has admitted that he has not shown the said payment of hand loan in his IT returns. On the contrary in para-6 of his cross- examination he has positively stated that the deceased plaintiff had a firm by name Roshan and Co., and it was his source of income. This fact once again falsifies his contention that because P.W.1 was in need of money he had leased out schedule premises to him under Ex.P.8.
46. It has been the specific allegation of P.W.1 that since D.W.1 had close intimacy with P.W.1, the deceased P.W.1 was taking every decision after consulting him and he has also not denied that the deceased used to trust him more than his family members and whether he was 48 O.S.No.6068/2012 acting on his advise although D.W.1 has pleaded ignorance about these aspects. This ignorance of D.W.1 would once again probablise the case of the plaintiffs that P.W.1 had reposed utmost trust on him which had led him take decision only after consulting D.W.1. Consequently it would indicate the fact that taking advantage of such situation D.W.1 had brought Ex.P.8 in existence without there being any intention on the part of P.W.1 to act upon it.
47. It is further pertinent to note that EX.P.8 which is the base for the defence of D.W.1 is shown to have been attested by two witnesses by name M. Srinivas and one Prasanna. When the plaintiffs have seriously disputed this document and more particularly when P.W.1 had specifically alleged that he had never intended to lease out the suit schedule property to D.W.1 under Ex.P8 then the burden was heavy on D.W.1 to prove this document by removing all those suspicious circumstances which are pointed out by the plaintiffs surrounding this document.
48. No doubt Ex.P8 is a document being styled as a lease deed is not a compulsorily attestable document, but when it is under serious dispute by the plaintiffs particularly on the ground that it was the outcome of the 49 O.S.No.6068/2012 fraud and misrepresentation exercised by DW1 then he ought to have examined at least one witness named in this document to prove as to whether PW1 had consciously executed this document intending to lease out the suit property to him. The non-examination of such material witness would also lead to the inference that there was no intention on the part of the deceased plaintiff to lease out the suit property as stated in this disputed document.
49. It is also vehemently argued on behalf of the plaintiffs that even though Ex.P8 came into existence, but this document was never acted upon by the parties. In this regard the learned counsel for the plaintiffs has invited my attention to the recitals found in this document with regard to payment of rental amount by DW1 to PW1, the payment of taxes and other charges pertaining to the suit property. Clause No. 3.1 of this document recites that the lessee shall pay to the lessor annual rental of Rs.1,000/- and also agrees to pay enhanced rent at the rate of 5% at the end of every fifteen years. Whether DW1 has complied with this condition, is to be seen.
50 O.S.No.6068/2012
50. DW1 in his cross examination dtd.09.12.2019 in para 14 has categorically admitted that the has no documents to show that he had paid rent to PW1. Though he has asserted that he had paid rent in cash, even to substantiate this aspect no materials are placed before the court, it has been specifically suggested to PW1 when he was in the witness box. He has also admitted that he has no paid rent to the LRs of the deceased plaintiff. Even he has admitted in his further cross examination in para 18 that though as per Ex.D1, he was to pay the property taxes, but he has not paid the same.
51. Under Section 108 of the Transfer of Property Act, the lessee is conferred with some rights and liabilities and one such liability as contemplated under Clause (l) of this provision is to tender at the proper time and place, the premium or rent to the lessor or to his agent in this behalf. In the instant case admittedly DW1 has failed prove that he had ever made such periodical payment of rent to PW1. These circumstances would once again probabalise the case of the plaintiffs that this document was never intended to be acted upon by the parties which consequently proves that this document came into existence solely at the instance of DW1 and 51 O.S.No.6068/2012 designed solely to suit his purpose. Consequently it is to be held that DW1 having been proved to be in a dominating position during the lifetime of PW1 has managed to create Ex.P8 by coercing him. Hence, these issues are to be answered in favour of the plaintiffs in the affirmative.
52. ISSUE Nos.3 AND 4 :- Since both these issues are interconnected, they are tried together to avoid repetition of facts. In view of the findings rendered on the preceding issues, now it is proved that Ex.P8(Ex.D1) has come into existence under the forced and suspicious circumstances at the instance of DW1. It is pertinent to note that except pleading that under Ex.P.8 he has become the lessee of the schedule premises for a period of 99 years, D.W.1 has not proved his legal right over the schedule premises on the basis of any other documents or deeds.
53. It is to be noted that when it is now proved that he has brought Ex.P.8 in existence under some forced and suspicious circumstances by coercing P.W.1, it cannot be said that his possession over the schedule property as on the date of the suit was lawful so as to sustain his defence. Rightly the plaintiff had got issued 52 O.S.No.6068/2012 him the legal notice on 30.08.2011 as per Ex.P.9 calling upon him to vacate the schedule premises and hand over possession of the same to him as required under law. This notice was duly served upon D.W.1 as could be borne-out from the postal records which are produced before the Court. It is relevant to note that inspite of receipt of the said notice he has not attempted to either comply with the said demand of P.W.1 or to respond or reply to the said notice which once again clearly indicates his utter disregard to the demand made by P.W.1.
54. It is further relevant to note that except relying on Ex.P.8, it has not been contended by D.W.1 as to whether he had occupied the schedule premise as a monthly tenant under P.W.1 or under his father at any point of time prior to the execution of the disputed Ex.P.8. When there are no materials before the Court to prove the existence of such jural relationship of landlord and tenant between the parties at any point of time, the only inference which has to be drawn is that the possession of D.W.1 over the suit premises is illegal and an unlawful possession which could be terminated by P.W.1 at any point of time and rightly he had called upon D.W.1 to quit 53 O.S.No.6068/2012 and hand over possession of the suit schedule property to him.
55. However the learned defence counsel has vehemently argued that this claim of P.W.1 seeking possession of the suit schedule property is hopelessly barred by limitation as P.W.1 had slept over his right since the date of execution of Ex.P.8. It is submitted that Ex.P.8 came into existence in the year 2004 and P.W.1 in his cross-examination has clearly admitted that he came to know about the alleged fraud committed by D.W.1 and also about Ex.P.8 in the year 2007, but no action has been taken by P.W.1 since 2007 till the date of filing of the present suit which would debar him from seeking possession of the schedule premises.
56. In the cross-examination of P.W.1 in para-6 he has stated that he came to know about the Ex.P.8 in the year 2007 and when it was asked to him as to what had prevented him from seeking for possession of the schedule premises immediately thereafter, but he has offered explanation which is found in para-4 of his cross- examination wherein he has stated that he underwent brain operation in the year 2007 and was recovered from it in the year 2007. Even in para-6 he has stated that 54 O.S.No.6068/2012 even after 2007 upto the date of filing of this suit he had asked D.W.1 many times to hand over the property but he went on postponing the same on account of settlement and therefore he did not approach the Court at the earliest.
57. As discussed supra from the evidence on record it is now proved that P.W.1 was suffering from acute ill-health and was also under constant medication which fact is not denied by D.W.1. It is also to be noted that it is the own case of P.W.1 that because of the close intimacy between the two families, they had allowed D.W.1 to continue in possession of the schedule property but thereafter when P.W.1 learnt about the fraudulent act of D.W.1 he immediately got issued Ex.P.9- legal notice to him calling upon him to hand over the possession of the schedule premises. These attending facts and circumstances which are brought before the Court would certainly bring the suit of the plaintiff within limitation for the reason that this suit is mainly based on the allegations of fraud, misrepresentation and coercion exercised by D.W.1 on P.W.1 in getting executed Ex.P.8- lease deed. Under such circumstances merely because P.W.1 did not take action since 2007 till 2015 against 55 O.S.No.6068/2012 D.W.1, that itself cannot be made as a sole ground to reject his claim when it has been his definite case that he had reposed utmost trust and confidence in D.W.1 and in pursuance of the same he had allowed him to occupy the schedule property. Therefore when it has been proved by the plaintiff as to how Ex.P.8 was brought into existence by D.W.1 under the forced circumstances, it cannot be said that P.W.1 has to be non-suited on the ground of limitation as alleged by the defendants.
58. If really D.W.1 had such justifiable grounds to protect his possession over the schedule property certainly he would have responded to Ex.P.9- legal notice after receipt of the same by issuing reply and by setting out his grounds of defence. On the contrary he has not responded to the same which once again is sufficient to infer that he had such malafide intention to protect his illegal possession over the schedule property. Therefore considering these facts and circumstances of the case it could safely be held that P.W.1 could legally terminate the alleged occupation of the D.W.1 over the schedule property and therefore he is entitled to recover the possession of the schedule premises from the D.W.1. 56 O.S.No.6068/2012 Hence both these issues are answered in favour of the plaintiffs in the affirmative.
59. ISSUE No.5:- The deceased plaintiff had also claimed damages from D.W.1 for his unlawful occupation over the schedule premises. He has sought for a decree for past and future mesne profits @ Rs.45,000/- per month from the date of illegal occupation of the defendant from 21.07.2004 till he vacates the schedule premises and delivers its vacant possession to him. It is now proved that the suit schedule premises is situated in a prime locality of Bengaluru City and is admittedly being used for commercial purpose.
60. It is also not in dispute that D.W.1 had also sublet the schedule premises to various other tenants and against some of these tenants he had also sought for eviction and many matters were also pending between D.W.1 and the said sub-lessees. All these sub-tenants under D.W.1 are also using their respective tenements for commercial purpose. Therefore considering these aspects it could be said that the schedule premises would definitely fetch sufficient rental amount if it is let out. Even his own document Ex.P.8/Ex.D.1 at clause 8.1 refers to the condition for use of the schedule premises for legal 57 O.S.No.6068/2012 business purposes. Considering these aspects it could safely be concluded that the schedule premises is purely a commercial premises to be used for business purpose. Therefore as from the evidence on record it is now proved that on the strength of the fraudulent Ex.P.8 lease deed D.W.1 has successfully squatted over the schedule premises since 2004 till the date by appropriating the sufficient monetary benefits in the form of rental amount and lease amount from the sub-lessees which he is certainly liable to pay to the plaintiffs who are true and lawful owners/landlords of the schedule premises. However the quantum of the mesne profit/damages to which the plaintiffs could be held entitled, shall be considered in the final decree proceedings. Hence this issue is accordingly answered in favour of the plaintiffs in the affirmative.
61. ISSUE No.6:- In the light of findings given on above issues and in the facts and circumstances of the case as now it is proved from the materials and evidence on record that the defendant without having any lawful title or interest over the schedule premises, has been squatting over it unlawfully since 2004 till the date on the strength of the fraudulent lease deed- Ex.P.8 and thereby 58 O.S.No.6068/2012 deprived the plaintiffs of enjoying their property for more than 15-16 years. Instead of handing over the possession of the schedule premises to the plaintiff when demanded, he has failed to comply with the same but on the other hand made the deceased plaintiff and after his death, his LRs to fight this litigation by incurring monetary expenses in the form of payment of Court fee and litigation charges for which the suit deserves to be decreed with cost. With these observations, the Court proceeds to pass the following:-
ORDER The suit filed by the plaintiffs against the defendant for the relief of declaration, ejectment and for past and future mesne profits is hereby decreed with cost.
It is hereby declared that the alleged lease deed dated 21.07.2004 at Ex.P.8 (Ex.D.1) is null and void and not binding on the plaintiffs.
The defendant is hereby directed to vacate 'A' schedule premises and hand over its vacant possession to the 59 O.S.No.6068/2012 plaintiffs within 2 months from the date of this order and on his failure to comply with the same, the plaintiffs are at liberty to recover the possession the said premises from the defendant through the process of Court.
The claim of past and future
mesne profits shall be considered and
adjudicated in the final decree
proceedings.
Draw preliminary decree
accordingly.
(Dictated to the Judgment Writer, transcribed by him on Computer, printout taken, corrected and then pronounced by me in the Open Court on this the 28th day of September, 2021).
(SAVITRI SHIVAPUTRA KUJJI) X Addl. City Civil & Sessions Judge, Bangalore.
ANNEXURE List of witnesses examined for the plaintiffs:
PW.1 : R. Ashok Kumar PW.2 : Smt.Shanthi Ashok
List of documents exhibited for plaintiffs:
Ex.P1: Admission and discharge summary of Ramakrishna Nursing home 60 O.S.No.6068/2012 Ex.P2: Admission and discharge summary of Wockhardt hospital Ex.P3: Certified copy of deposition in OS NO.4202/2009 Ex.P4: Certified copy of order sheet in OS No.26824/2012 Ex.P5: Certified copy of plaint Ex.P6: Certified copy of Written statement Ex.P7: Certified copy of deposition of defendant Ex.P8: Certified copy of Registered lease deed Ex.P9: Copy of legal notice Ex.P10: courier receipt Ex.P11: Postal receipt Ex.P12: Postal Acknowledgement Ex.P13: Amended plaint copy in OS 5763/2008 Ex.P14: Plaint copy in OS 5763/2008 Ex.P15: Petition copy in Misc 573/2009 Ex.P16: Statement of objections in P & SC 128/04 List of witnesses examined for defendant:-
D.W.1 : Anand Bhandari List of documents got exhibited for defendant:-
Ex.D1 : Lease deed Ex.D2 : Bank statement X Addl. City Civil & Sessions Judge, Bangalore.