Bangalore District Court
In Sri.T.K.Vittal vs In Smt.Shobha A Rao on 3 October, 2020
1
OS.No.5670 & 5674 / 2016
COPY
IN THE COURT OF XVIII ADDL.CITY CIVIL JUDGE, AT
BENGALURU CITY, [CCH.NO.10]
Dated this day the 3rd October 2020
PRESENT
Sri. SADANANDA NAGAPPA NAIK, B.A.L., LL.B.
XVIII Addl.City Civil Judge.
O.S.No.5670 & 5674 OF 2016
Plaintiff in Sri.T.K.Vittal
OS.No.5670/2016: Since Dead by Lrs.
1. Smt. V. Nagarathna,
W/o Late T.K.Vittal
Aged about 81years,
R/at No.742, 13th Cross,
7th Block(West), Jayanagar,
Bangalore - 82.
2. Smt.Asha Annaiah,
D/o Late T.K.Vittal,
Aged about 58 years,
R/at No.12-G-5,
Sapthagiri Residency-IV
7th Block, 4th Phase,
Rajiv Nagar, BSK III stage,
Bangalore - 85.
[By Smt.K.M.Rohini, Advocate]
/VS/
Defendant in Smt.Shobha A Rao,
OS.No.5670/2016: W/o Annoji Rao,
Aged about 58 years,
R/at No.742, 13th Cross,
7th Block(West), Jayanagar,
2
OS.No.5670 & 5674 / 2016
COPY
Bangalore - 82.
[Sri.M.R.Narayan Advocate]
Plaintiff in Sri.T.K.Vittal
OS.No.5674/2016: Since Dead by Lrs.
1. Smt. V. Nagarathna,
W/o Late T.K.Vittal
Aged about 81years,
R/at No.742, 13th Cross,
7th Block(West), Jayanagar,
Bangalore - 82.
2. Smt.Asha Annaiah,
D/o Late T.K.Vittal,
Aged about 58 years,
R/at No.12-G-5,
Sapthagiri Residency-IV
7th Block, 4th Phase,
Rajiv Nagar, BSK III stage,
Bangalore - 85.
[By Smt.K.M.Rohini, Advocate]
/VS/
Defendant in Smt.Sudha P Rao,
OS.No.5674/2016: W/o B.K.Pundaleeka Rao,
Aged about 55 years,
R/at Dudley Road,
South All Middlesex,
UB 25 AR, London,
United Kingdom
[Sri.M.R.Narayan Advocate]
Date of institution of 04.08.2016
suit
Nature of the suit Declaration & Permanent injunction
3
OS.No.5670 & 5674 / 2016
COPY
(Suit on pronote, suit
for declaration and
possession suit for
injunction, etc.
Date of the 03.07.2017
commencement of
recording of the
evidence.
Date on which the 3.10.2020
Judgment was
pronounced.
Year/s Month/s day/s
Total duration: 04 01 29
(SADANANDA NAGAPPA NAIK)
XVIII Addl.City Civil Judge, Bangalore.
C OM M ON JU DG MEN T
The plaintiff in both suits has filed two separate suits against his 1st & 3rd daughters for the relief of declaration to declare the gift deeds in favour them be cancelled and for permanent injunction with costs.
2. Since in both suits the plaintiff are one and the same and the relief claimed are one and the same, against his own daughters both the suits are clubbed as per the order dated 17.7.2017 on the memo filed by the plaintiff and common evidence was recorded, heard and disposed off through common judgment to avoid conflicting of decisions by considering OS.NO.5670/2016 as main suit.
4OS.No.5670 & 5674 / 2016 COPY
3. The brief and relevant facts as alleged in the plaint in OS.5670/2016 are as follows:
It is the contention of the plaintiff that he is absolute owner in possession and enjoyment of the residential property No.742, 13th Cross, 7th Block (West) Jayanagar Bangalore measuring east-west 51 feet and north-south 65 feet with residential building consists of ground floor and two portions on the first floor on eastern and western side ie., suit schedule A property by virtue of absolute sale deed dtd.26.6.1980 executed by BDA and he became the absolute owner in possession and enjoyment of the suit schedule A property.
4. It is further contended by the plaintiff that he has got 4 daughters by name Smt.Shobha A Rao, Smt.Asha Annaiah, Smt.Sudha P Rao and Smt.Shaila Prabha Satish who are all married and living with their husbands. The defendant and her husband were living in Abudabi and returned to Bangalore and started to live with the plaintiff in the suit schedule property. In the beginning, they looked after the plaintiff and his wife. She along with other daughters forced him to make a Will in the name of defendant and Smt.Sudha P Rao who is residing in England by bequeathing the suit schedule property in their name. Plaintiff not able to withstand the pressure has executed the Will on 26.6.2000 in 5 OS.No.5670 & 5674 / 2016 COPY favour of defendant and his 3rd daughter by bequeathing the ground floor in favour of 1st defendant and first floor in favour of his 3rd daughter Smt.Sudha P Rao. His 4 th daughter suggested that she does not want any share in the property and her share should be equally distributed among her 3 sisters after getting the Will cancelled. It is further contended by the plaintiff that the defendant without disclosing, got the power of attorney from her sister Smt.Sudha P Rao from London in her favour for the purpose of gift deed and has been pressurised him for cancellation of the Will. Plaintiff believing the proposal made by her on 7.12.2007 along with the defendant, without looking to the papers, got cancelled the Will dtd.26.6.2000 on full faith in the defendant. Thereafter, she started harassing the plaintiff and his wife and demanded the rental amount, when he refused, she assaulted him and not provided food to them. Further she had shown the copy of the document saying that the plaintiff has executed the gift deeds in her favour in respect of ground floor and first floor in favour of Smt.Sudha P Rao and they became the absolute owners. It is further contended by the plaintiff that he came to know on the day of cancellation of the Will dtd.7.12.2007 that by playing fraud and misrepresenting the facts, defendant got executed the Gift Deeds through plaintiff in respect of the suit schedule property in her favor and in favor of Sudha P Rao representing her as GPA holder of Sudha P Rao. The said gift 6 OS.No.5670 & 5674 / 2016 COPY deeds were made without his consent. Further plaintiff has also pleaded with regard to harassments meted out by him through defendant. He has not disclosed the physical torture he underwent at the hands of defendant in order to keep the prestige of the family in the society. It is further contended that now he is looked after by his 2 nd daughter Mrs.Asha Annaiah.
5. It is further contended that the other two daughters residing in Canada and United Kingdom they use to make threatening calls to him and his wife. He had also approached the elders help line on 19.1.2016 and lodged complaint against the defendant and her family members. It is further contended that the gift deed executed on 7.12.2007 are without his knowledge and defendant has played fraud, undue influence and by misrepresenting the facts that it was only the cancellation of the Will. He was forced to execute the alleged gift deeds. Plaintiff is in possession of the schedule B property and he is paying water & electricity charges. Hence, prayed to decree the suit for the relief of declaration to declare the gift deed registered on 7.12.2007 vide its No.JAY-1-03184/2007- 2008, Book-1, stored in CD No.JAYD 100 in respect of schedule B property in favour of defendant be cancelled and the same is null and void and not binding on the plaintiff and for permanent injunction restraining the defendant or her person/agents or any henchmen in assaulting and torturing 7 OS.No.5670 & 5674 / 2016 COPY the plaintiff and interfering with suit schedule property which is in peaceful possession and enjoyment of the plaintiff and for costs.
6. Defendant appeared through her counsel and filed the written statement denying the plaint averments. It is contended that plaintiff has executed the gift deed in respect of entire B schedule property in her favour and rest of the property to her younger sister Sudha P Rao. She had admitted the relationship between the parties. It is further contended that she was looking after the plaintiff. Plaintiff never had cordial relationship with Smt.Asha Annaiah. Smt. Shila Prabha Satish merely stated that the Will executed by him may be contested by Asha Annaiah and therefore to gift the schedule property in favour defendant and Smt.Sudha P Rao. Accordingly he had executed the gift deeds out of his free volition and was fully aware of the facts and out of love and affection. She had denied the allegations with regard to the harassments to the plaintiff and his wife. It is further contended that plaintiff is a qualified person and well learned and there was no need for him to call anybody to read the documents for him. On the above grounds prayed to dismissal of the suit.
7. In his plaint in OS.No.5674/2016 the plaintiff had reiterated the averments made in the Plaint in 8 OS.No.5670 & 5674 / 2016 COPY OS.NO.5670/2016 and it is replica of the plaint in OS.No.5670/2016. It is further contended that he had not executed the gift deed in respect of first floor in respect of B schedule property in favour of defendant out of his own will. The same is obtained through fraud, undue influence and misrepresentation. Hence prayed to decree the suit for the relief of declaration to declare the gift deed registered on 7.12.2007 vide its No.JAY-1-03186/2007-2008, Book-1, stored in CD No.JAYD 100 in respect of schedule B property in favour of defendant be cancelled and the same is null and void and not binding on the plaintiff and for permanent injunction restraining the defendant or her person/agents or any henchmen in torturing the plaintiff through e-mail or telephone or any other mode and interfering with suit schedule property which is in peaceful possession and enjoyment of the plaintiff and for costs.
8. The defendant appeared through her counsel and filed the written statement denying the plaint averments. It is contended that plaintiff has executed the gift deed in respect of entire B schedule property in her favour and rest of the property to her sister Shobha A Rao. She had admitted the relationship between the parties. Further she had reproduced the avernments made by the defendant in her written statement in OS.NO.5670/2016. It is further contended that she was looking after the plaintiff. Plaintiff never had cordial 9 OS.No.5670 & 5674 / 2016 COPY relationship with Smt.Asha Annaiah. Smt. Shila Prabha Satish merely stated that the Will executed by him may be contested by Asha Annaiah and therefore to gift the schedule property in favour defendant and Smt.Shobha A Rao, plaintiff had executed the gift deeds out of his free volition and was fully aware of the facts and out of love and affection. She has denied the allegations with regard to the harassments to the plaintiff and his wife. It is further contended that plaintiff is a qualified person and there was no need for him to call anybody to read the documents for him. On the above grounds prayed to dismissal of the suit.
9. On the basis of the above pleadings my predecessor has framed the following issues:
OS.NO.5670/2016:
1. Whether the plaintiff proves that the gift deed dated 7.12.2007 came to be executed by fraud, misrepresentation and undue influence of the defendant?
2. Whether the plaintiff proves that he is in possession and enjoyment of the plaint schedule properties?
3. Whether the plaintiff proves that the defendant is interfering with his peaceful possession and enjoyment of the suit schedule properties?
4. Whether the plaintiff proves that he is entitled to the relief of cancellation of the gift deed registered on 7.12.2007 is null and void as prayed for?10
OS.No.5670 & 5674 / 2016 COPY
5. Whether the plaintiff proves that he is entitled to the relief of permanent injunction as prayed for?
6. What order or decree?
OS.NO.5674/2016:
1. Whether the plaintiff proves that gift deed dated
7.12.2007 was executed without his knowledge by playing fraud undue influence and misrepresentation?
2. Whether the plaintiff proves that he is in possession and enjoyment of plaint 'B' schedule property?
3. Whether the plaintiff proves that defendant had interfered with possession and enjoyment of suit schedule property as contended?
4. Whether the plaintiff proves that he is entitled for relief of cancellation of gift deed as prayed for?
5. Whether the plaintiff proves that he is entitled for the relief of permanent injunction as prayed for ?
6. What order of decree?
10. Plaintiff got examined himself as PW1 and one witness as PW2, got marked the documents at Ex.P1 to P37 and closed his side. The defendant got examined herself as DW1, got marked document at Ex.D1 to D3 and closed her side.
11OS.No.5670 & 5674 / 2016 COPY
11. Heard the arguments of plaintiff and defendants. Perused the materials placed on record.
12. My findings on the above issues are as under:
OS.NO.5670/2016 Issue No.1 : In the negative Issue No.2 : In the affirmative Issue No.3 : In the affirmative Issue No.4 : In the negative Issue No.5 : In the affirmative Issue No.6 : As per final order, OS.NO.5674/2016 Issue No.1 : In the negative Issue No.2 : In the affirmative Issue No.3 : In the affirmative Issue No.4 : In the negative Issue No.5 : In the affirmative Issue No.6 : As per final order, For the following:
REA S ON S
13. Issue No.1 & 4 in both suits:- It is the contention of the plaintiff that he is absolute owner in possession and enjoyment of the residential property No.742, 13 th Cross, 7th Block (West) Jayanagar Bangalore measuring east-west 51 feet and north-south 65 feet with residential building consists of ground floor and two portions on the first floor on eastern and western side ie., suit schedule A property and the same was allotted to him by CITB(now BDA) by receiving entire consideration amount. He obtained sanctioned plan and 12 OS.No.5670 & 5674 / 2016 COPY constructed the said property by availing loan from Government as house advance and from Vysya Bank and Syndicate Bank. BDA has executed absolute sale deed dtd. 26.6.1980, on the basis of the same revenue records were mutated in his name and he became the absolute owner in possession and enjoyment of the suit schedule A property. It is further contended by the plaintiff that he has got 4 daughters by name Smt.Shobha A Rao, Smt.Asha Annaiah, Smt.Sudha P Rao and Smt.Shaila Prabha Satish who are all married and living with their husbands. The defendant Shobha A Rao and her husband were living in Abudabi and returned to Bangalore and started to live with the plaintiff in the suit schedule property. In the beginning they looked after the plaintiff and his wife and she along with other daughters forced him to make Will in the name of defendants Smt.Shobha A Rao and Smt.Sudha P Rao who is residing in England by bequeathing the suit schedule property in their name. Plaintiff not able to withstand the pressure has executed the Will on 26.6.2000 in favour of defendants by bequeathing the ground floor in favour of 1 st daughter Smt.Shobha A Rao and first floor in favour of 3rd daughter Smt.Sudha P Rao. His 4th daughter suggested that she does not want any share in the property and her share should be equally distributed among her 3 sisters after getting the Will cancelled.
13OS.No.5670 & 5674 / 2016 COPY
14. It is further contended by the plaintiff that the defendant No.1 without disclosing, got the power of attorney from her sister Smt.Sudha P Rao from London in her favour and has been pressurised him for cancellation of the Will. Plaintiff believing the proposal made by her on 7.12.2007 along with the defendants, without looking to the papers, got cancelled the Will dtd.26.6.2000 on full faith in the defendants. It is further contended that to his surprise the defendant Smt.Shobha A Rao has paid a sum of Rs.2 Lakhs to purchase one lakh NSC in the name of 2nd daughter and one Lakh in the name of his 4th daughter. Thereafter, she started harassing the plaintiff and his wife and demanded the rental amount, when he refused, she assaulted him and not provided food to them. Further she had shown the copy of the document saying that the plaintiff has executed the gift deeds in her favour in respect of ground floor and first floor in favour of Smt.Sudha P Rao and they became the absolute owners.
15. It is further contended by the plaintiff that he came to know that on the day of cancellation of the Will dtd.7.12.2007, by playing fraud and misrepresenting the facts, defendants got executed the Gift Deeds through plaintiff in respect of the suit schedule property representing her as GPA holder of Sudha P Rao. The said gift deeds were made without his consent. It is further contended that the gift deed 14 OS.No.5670 & 5674 / 2016 COPY executed on 7.12.2007 are without his knowledge and defendant has played fraud, undue influence and by misrepresenting the facts that it was only the cancellation of the Will, he was forced to execute the alleged gift deeds.
16. Plaintiff in order to prove his plaint averments got examined himself as PW-1 and one witness as PW2, and in support of his oral evidence he had produced the documents which are marked at Ex.P1 to P37. In his affidavit filed in lieu of examination in chief, he has reiterated the plaint averments.
17. Learned Counsel Smt.KM.Rohini appearing on behalf of the plaintiff strenuously that plaintiff was a senior citizen. He was suffering from Kidney ailment. He had BP, Sugar and other health complication. Plaintiff had required more than Rs.10,000/- per month for his medication. The defendants were not taking care of the plaintiff. The plaintiff had executed a Will dtd.26.6.2000. Thereafter, the same got cancelled. On the day of cancellation of the registered Will, the defendants fraudulently made plaintiff to execute the gift deed without his knowledge. The defendant relied on Ex.D1 to 3 the letters which are addressed by plaintiff to his daughters stating that he was in cordial relationship with his daughters. However, on perusal of Ex.D1 to 3, there is no discussion on 15 OS.No.5670 & 5674 / 2016 COPY gift deeds. It is further argued that plaintiff did not know about the execution of the registered gift deed for long time. It is argued that in the gift deed is created by playing fraud as it is evidence in the gift deeds that there is no mention about the mother. Even no amount is mentioned for mother. Therefore, gift deed is fraudulent. It is argued that the gift deed is drafted by one Sri.L.G.Manohar, Advocate. No attesting witnesses to the gift deed are examined. It is also argued that examination of witnesses are mandatory as provided u/s.68 of Indian Evidence Act. The same has not been done. It is also contended that on the day of cancellation of the Will, no other relatives have been taken to the Sub-registrar's office.
18.The contention that the defendants used to send money from Dubai for the purpose of construction of the building is not tenable. It is contended that for the court question to PW1, as to who has drafted these gift deeds, the PW1 has answered that partially he has drafted it and then he has shown it to some of the advocates friends who had rectified it and made it perfect, it is argued by the counsel for the plaintiff that he has misunderstood the question as with respect to the Will and plaintiff has given a such answer. It is contended that the defendant in OS.No.5670/2016 / DW1 has admitted that her father had filed a petition before Asst.Commissioner, Maintenance Tribunal for Senior Citizen, Bangalore, contending that plaintiff had been neglected by 16 OS.No.5670 & 5674 / 2016 COPY her. It is also admitted by her that she had not paid any money to her mother for her maintenance as per the orders in Ex.P37. She has also admitted that she is not maintaining her mother also. She has also admitted that at the time of retirement, the plaintiff was residing at Jayanagar 7 th Block, the ground floor of the suit schedule building. It is also admitted by her that her father has provided education to all his four daughters. It is also admitted by DW1 that her mother sustained an injury to her leg on account of fall. She was unable to walk without the walker. Her parents were suffering from age old ailments like diabetes, blood pressure. It is also admitted by DW1 that she used to collect rent from the tenants. She has also admitted that she has been allotted a BDA site at Banashankari 6th Stage in the year 2003-04. She has also admitted that before executing the gift deed, she had good relationship with her father. She has also admitted that she took the plaintiff to the Sub-registrar office.
19. It is further argued that the plaintiff had filed an application before the Asst. Commissioner under Senior Citizenship Act. The said Act came into force from 29.12.2007. However, as the Gift deeds were executed on 7.12.2007, the Tribunal held that the gift deeds cannot be cancelled and only ordered for maintenance. It is argued that the relationship between the plaintiff and defendants were strained. Plaintiff 17 OS.No.5670 & 5674 / 2016 COPY has also relied on the decision reported in 2014(5) RCR (CIVIL) 656 wherein Punjab & Haryana High Court ordered the elder son for vacating the house to his father who is former Chief Justice of Punjab & Haryana High Court to contend that the very said case is aptly applicable to the present case. It is argued that the defendants have not proved the gift deed, therefore it is null and void. It is also argued the rulings relied by the defendants are on different footings and not identical to this case.
20. On the point of limitation it is argued on behalf of the plaintiff that as the plaintiff is a senior citizen, the same may kindly be liberally construed. It is argued that even no copy of gift deed had been given to the plaintiff and he was not at all aware of the registered gift deed. It is argued that on perusal of the records, it has come in the evidence that plaintiff had thrown the gift deed. Infact, he has not gone through the gift deeds. On these grounds counsel for the plaintiff prayed to decree the suits.
The counsel for the plaintiff has relied on the following decisions:
1. Judgment of Hon'ble Delhi High Court in CS(OS)N.1983/2009 - Lotika Sarkar Vs.Preeti Dhoundial and others.
2. Judgment of Hon'ble Supreme Court in Civil Appeal No.20/2015 - Om Prakash (dead) through his Lrs.Vs. Shanti Devi and others.18
OS.No.5670 & 5674 / 2016 COPY
3. Balappa Tippanna Vs. Asangappa Mallappa and another reported in ILR 1959 KAR 612-
4. Sanjeep Panigrahi Vs. Union of India & Ors reported in 2019(1) Kar. L.J. 20.
5. Judgment of Hon'ble Punjab - Haryana High Court in letter parent Appeal No.1007/2013(GM) - Justice Shanti Sarup Dewan, Chief Justice(Retired) and another Vs. Union Territory, Chandigarh and others.
6. Ningamma Vs. Byrappa and others Reported in AIR 1968 SC 956.
7. N.D. Vanamala Vs. State of Karnataka and others Reported in 2019 (1) Kar. L.R. 20 Hon'ble High court of Karnataka observed that:
20. A combined reading of the said provisions makes it clear that even if the property has been transferred by way of gift or otherwise, the transferee shall provide the basic amenities and basic physical needs to the transferor and if the transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal. Likewise, whoever having the care and protection of the senior citizen, leaves such senior citizen in any place with the intention of wholly abandoning such senior citizen, is punishable with imprisonment or fine or both.
27. "There are no greater gods than parents. There is no greater Dharma than compassion, there is no enemy greater than anger, there is no wealth greater than good reputation, bad reputation is death itself.
Even according to Manusmruthi, No person can repay his parents even in 100 years for all the troubles that 19 OS.No.5670 & 5674 / 2016 COPY they go through to give birth to him/her and raise him/ her to adulthood. Therefore, always try to do whatever pleases your parents and your teacher, because only then does any religious worship done by you will bear some fruit."
21. Percontra, it is contended by the defendants that plaintiff has executed the gift deed in respect of entire B schedule property in respective suits in their favour. It is further contended that defendant in OS.No.5670/2016 was looking after the plaintiff. Plaintiff never had cordial relationship with Smt.Asha Annaiah. Smt. Shila Prabha Satish merely stated that the Will executed by him may be contested by Asha Annaiah and therefore to gift the schedule property in favour defendants. Plaintiff had executed the gift deeds out of his free volition and was fully aware of the facts and out of love and affection. She had denied the allegations with regard to the harassments to the plaintiff and his wife. It is further contended that plaintiff is a qualified person and there was no need for him to call any body to read the documents for him. On the above grounds prayed to dismissal of the suit.
22. The defendant in OS.NO.5670/2016 got examined herself as DW1, produced the documents at Ex.D1 to D3. In her affidavit filed for examination in chief she had reiterated the written statement of both the suits.
20OS.No.5670 & 5674 / 2016 COPY
23. The learned counsel for the defendant Sri.M.R.Narayan, argued that both suits are hit by law of limitation as the gift deed is dated 7.12.2007 and the suits are filed on 4.8.2016. Even in the plaint also nowhere it is stated that when plaintiff came to know about the gift deed. Even on perusal of para 11 of the plaint, it states that one fine day in the morning at about 10.30am., plaintiff was preparing coffee in the kitchen, and the defendant asked the plaintiff to pay the rental amount of the first floor fully to her and other incidents occurred on that day. On the perusal of entire para, it shows that nowhere the date has been mentioned. However, in the evidence of the plaintiff, he had admitted that as there was a gift, Shobha was demanding rent of the entire building. The incident narrated in para 11 of the plaint, took place in the month of July 2008 and he had lodged a complaint when he lost his tooth in the incident. He has also stated that Shobha was called by the police and they have enquired her. It is argued that the admission made in the deposition and the plaint clearly shows that the plaintiff had the knowledge about the gift deeds in the year 2008 itself. The suit is filed in the year 2016. Therefore, the suit is barred by law of limitation. It is argued that even in Ex.P13 the complaint lodged before Senior Citizen Helpline, it is clearly mentioned by the plaintiff that on 7.7.2008, at about 10.30 in the morning when he was preparing coffee in the kitchen, Shobha 21 OS.No.5670 & 5674 / 2016 COPY st A Rao asked him to pay rental amount of the 1 floor. In the said complaint, plaintiff has requested for cancellation of the gift deeds. It was argued that the plaintiff was aware about the gift deed in the year 2008 itself. Therefore, it is cannot be termed a stray admission in the deposition. It is argued that the plaintiff had executed a gift deed out of love and affection. There is no coercion, fraud, undue influence, misrepresentation as contended by the plaintiff. It is argued that plaintiff was Deputy Law Secretary and well learned. The Will dtd.26.6.2000-Ex.P6 states about gifting of his property to all his children and to his spouse. The suit schedule property and the property in the Will are same. The counsel for the defendant has also readout entire Will to contend that the plaintiff was mentally sound and aware about the execution of the Will. When such being the case, even at the time of execution of the gift deed also he was aware that he was executing the gift deed in favour of defendants. It is argued that the plaintiff has not denied his signature on the gift deed. However, it is his contention that it was forceful. It is argued that the plaintiff has admitted the cancellation of the Will on 7.12.2007. When he is aware about the cancellation of the Will he is also aware about the execution of the gift deeds.
24. It is vehemently argued that plaintiff in his evidence admitted that he himself has drafted the gift deeds 22 OS.No.5670 & 5674 / 2016 COPY and his advocate friends rectified and made it perfect. When he himself had admitted that he had drafted the gift deed, question of playing fraud and misrepresentation does not arise at all. Therefore the filing of the present suit is just a change in mind and not because of the fraud or misrepresentation.
25. It is argued that a gift deed need not be proved as required u/s.68 of Indian Evidence Act as the present suit dispute is with regard to only coercion, undue influence, and misrepresentation in execution of the gift deeds and there is no dispute with regard to the execution of the gift deed itself. It is argued that the rulings relied by the plaintiff is not applicable to the facts of the case. Senior Citizenship Act does not prescribe any limitation. There is also no bar under Senior Citizenship Act for entertaining the present suit. On the contention of the plaintiff that Senior Citizenship Act came to force for the purpose of effective maintenance and welfare of parents and citizens and Sec.23 provides for transfer of the property under certain circumstances and the said transfer shall be deemed to have been made by fraud, coercion, or undue influence. It is argued that Sec.23 of Senior Citizenship Act applicable only if it is a conditional gift. In this case there is no conditional gift as such.
26. On the Sec.16 of Indian Contract Act as to burden 23 OS.No.5670 & 5674 / 2016 COPY of defendant to prove there was no undue influence, it was argued that the plaintiff has not sought for amendment of issues. It is also contended that this court has framed the issues casting burden on the plaintiff. Therefore, it is the plaintiff who has to prove that there was a fraud, undue influence and misrepresentation. Even as per the requirements under Order 6 of CPC, when there is fraud and misrepresentation, that has to be specifically pleaded in the plaint. The same is not pleaded by the plaintiff in the present case. On the above grounds prays to dismiss the suit.
The counsel for the defendants has relied on the following decisions:
1. Judgment of Hon'ble High Court of Karnatak in RFA NO.1257/2004 - M/s. Vishwanath Rao Vs. MS.Nagaraj Rao & Others
2. Afsar Shiek & Another Vs. Soleman Bibi and others reported in 1976 AIR (SC) 163
3. Judgment of Hon'ble High Court of Karnataka in RFA No.703/2005 - Dr.Dinanth Laxman Rao Patil and others Vs. Sri.Neelkanth Basavaraj Athinmath & other.
4. Govind Naik Gurunath Naik Vs. Guru Rao Puttanbhat Kadekar reported in AIR 1971 (Kar) 330.
5. Hajrabai Bai & others Vs. Jadabai reported in 1987 AIR (MP) 106
6. Judgment of Hon'ble High Court of Karnataka in RSA No.1922/2013 - Smt.Jayamma & ors Vs. Smt. 24 OS.No.5670 & 5674 / 2016 COPY Mangalamma
7. Union of India Vs. Chaturbhai M Patei & Co.
8. Judgment of Hon'ble High Court of Karnataka in RSA No.6078/2010- Smt.Danava & Ors Vs. Basappa Somappa Pujeri & ors.
9. Judgment of Hon'ble Supreme Court in Subhas Chandra Das Mushib Vs. Ganga Prasad Das Mushib & Ors.
10. Judgment of Hon'ble High Court of Karnataka in RFA No.1821/2013 - GL.Chandrashekar Vs. CR.Anilkumar and others.
27. I have considered the arguments of both the counsels with great reverence and also given careful consideration to the rulings relied by both the parties. On the perusal of the plaints and complaint to the elders helpline, and the admissions made in the cross examination of PW1, it shows that the alleged incident with respect of the gift deed was taken place in the year 2008. It is a settled principle of law that cancellation of gift deed or any other declaration has to be made within the 3 years when the right to sue accrues as per Art. 58 of the Limitation Act 1963. However, the present suits are filed in the year 2016. As per Sec.3 of Limitation Act, every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed although the limitation has not been set up as a 25 OS.No.5670 & 5674 / 2016 COPY defence. Order 7 Rule 6 provides that where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed. However, on meticulous perusal of the plaint in both suits, no such grounds are pleaded. The documents relied by the Plaintiff itself speaks that the plaintiff had the knowledge of Gift Deed in the year 2008 itself. Therefore, the present suit is barred by law of limitation with respect to the prayer for cancellation of Gift Deed.
28. Even considering the present case on merits, on the perusal of gift deeds dtd.7.12.2007 (Ex.P29 in OS.NO.5670/2016 & Ex.P1 marked in OS.No.5674/2016) shows that the plaintiff has executed the gift deed in favour of defendants in both suits. As per the recitals contained in both the documents it has been mentioned that Donor's 2 nd daughter ie., plaintiff No.1(b) is well to do and she has got BDA in Kumaraswamy Layout and his 4th daughter Smt.Shyla Prabha Sathish is living in Canada, she and her husband are very well to do. The donor has already provided some assets and he has executed separate deeds. Whereas the donor's first daughter Shobha A Rao and his 3 rd daughter Sudha P Rao and their husbands have nothing to fall back nor they have, they own any house property of their own for their 26 OS.No.5670 & 5674 / 2016 COPY livelihood. Therefore with an intention to assist them, to own and possess their own independent residential house, the donor has decided to gift the ground floor portion of A schedule property in favour of 1 st daughter as per Ex.P29 and first floor of the A schedule property in favour of his 3 rd daughter as per Ex.P1 marked in OS.No.5674/2016. On the perusal of these documents, it bears the signature of donor and donee in all pages and attested by two witnesses by name C.K.Shamanna and M.N.Mohan and it is drafted by one L.G.Manonmani Advocate, Bangalore. Even on perusal of encumbrance certificate Ex.P30 from 1.4.2004 to 7.5.2016, shows the execution of above said gift deeds. Moreover, it is admitted by the plaintiff in his evidence that he himself has drafted the Gift Deed and got it rectified by his advocate friends. On perusal of these documents and admissions made by the plaintiff himself, it shows that the plaintiff has executed the gift deeds by his own volition. Plaintiff has failed to prove that the said documents were obtained by playing fraud, misrepresentation and undue influence of the defendants. The rulings relied by the learned counsel for the plaintiff refers to the suits for cancellation of gift deeds filed within the period of limitation. Therefore, the same are not applicable to the facts and circumstances of the present case. Hence, I hold the above two issues in the negative.
27OS.No.5670 & 5674 / 2016 COPY
29. Issue Nos.2 & 3 in both suits: It is the contention of the plaintiff that he is the absolute owner and in possession and enjoyment of the suit schedule property. The defendants on the basis of the alleged gift deeds started interfering with his possession and enjoyment over the suit schedule property. He has not disclosed the physical torture he underwent at the hands of defendant in order to keep the prestige of the family in the society. It is further contended that now he is looked after by his 2 nd daughter Mrs.Asha Annaiah. The other two daughters residing in Canada and United Kingdom use to make the threatening calls to him and his wife. He had also approached the elders help line on 19.1.2016 and lodged complaint against the defendant and her family members. Plaintiff is in possession of the suit schedule property by paying water & electricity charges.
30. The plaintiff in order prove the allegations of interference and harassments meted out from the hands of the defendants has produced the documents at Ex.P8 & 9 the true copies of complaint dtd.28.2.2016 with Ack. Ex.P13 is the certified copy of case records from office of Basavanagudi elders helpline, Ex.P14 is the Police complaint dtd.13.1.2017 with Ack., Ex.P15 is the Police complaint dtd.20.5.2017, Ex.P16 is the Police complaint dt.26.5.2017 with acknowledgment. Ex.P17 is the Discharge summary with 28 OS.No.5670 & 5674 / 2016 COPY medical reports, Ex.P18 to 23 are the Electricity bills with payment receipts, Ex.P24 & 25 are the Water bill with receipts. He has also produced Ex.P10-Loan clearance certificate issued by Vysya Bank, Ex.P11-Loan clearance certificate issued by Syndicate Bank, Bank pass book at Ex.P12, tax paid receipts at Ex.P26 & 27. Encumbrance certificate at Ex.P30, Ex.P31 to 35 are the writing made on backside of the cheque, copy of katha certificate at Ex.P36 and the certified copy of the order passed in case No.MSC/CR/41/2017-18.
31. Further the plaintiff got examined one Shivakumar who was acting as an advocate cum mediator in the Elders Helpline as PW2. In his evidence PW2 has deposed that on the complaint given by the plaintiff, they have issued notice to the defendant and the complaint came to be registered as WC.73. The parties were called to the office of Elders Helpline and private session and joint session were held as per Ex.P13. The said document is obtained by the plaintiff under Right to Information Act. PW2 was not cross examined by the defendants. On the other hand, the defendants have denied the above said allegations.
32. It is specifically pleaded in the plaint that plaintiff is in possession and enjoyment of the suit schedule property along with his wife. The defendants have not specifically 29 OS.No.5670 & 5674 / 2016 COPY denied the possession and enjoyment of the plaintiff over the suit schedule property as on the date of filing the suit. Even there is no suggestion in the cross examination of the plaintiff with regard to the possession of the plaintiff over the suit schedule property. But defendants have denied the interference. It is also specifically pleaded in the plaint that the cause of action for filing the suit has also arose on 19.1.2016 and 28.4.2016 when the complaint was lodged to the elders helpline and to the jurisdictional police station. On perusal of the materials on records including Endorsement issued by Elders helpline-Ex.P7, True copy of complaint dtd.28.2.2016 with Ack - Ex.P8 & 9, CC case records from office of Basavanagudi elders hlepline- Ex.P13, Police complaint dtd.13.1.2017 with Ack- Ex.P14, Police complaint dtd.20.5.2017 - Ex.P15, Police complaint dt.26.5.2017 with ack- Ex.P16, Discharge summary with medical reports - Ex.P17, CC of order in case No.MSC/CR/41/2017-18 - Ex.P37, it clearly shows that there is interference of the defendant over the possession of the plaintiff on the guise of the gift deeds. It is settled principle of law that suit for injunction is a recurring cause of action. Therefore, the time for filing the suit for permanent injunction begins to run from the each and every incident and the suit has to be filed within 3 years of from the date of cause of action. Since the suit for permanent injunction is a recurring cause of action, this 30 OS.No.5670 & 5674 / 2016 COPY court is of the opinion that the plaintiff has shown his possession over the suit schedule property and the alleged interference by the defendant. It is also admitted by DW1 that her mother sustained an injury to her leg on account of fall. She is unable to walk without the walker. Her parents were suffering from age old ailments like diabetes, blood pressure. Therefore, it would be just and proper to restrain the defendants from interfering with the possession of the suit schedule property without due course of law. With the above reasoning, I hold the above two issues in both suits in the affirmative.
33. Issue No.4 in both suits: Inview of findings on issue No.1 is both suits, plaintiff is not entitled for the relief of cancellation of the gift deeds as prayed. Hence, I hold the above issues in the negative.
34. Issue No.5 in both suits: Inview of my findings on issue No.2 & 3 in both the suits, plaintiff is entitled for the relief of permanent injunction as prayed for. Hence, I answer the above issues in the affirmative.
35. Issue No.6 in both suits: In the result, I pass the following:
O RDE R Suit of the plaintiff in OS.NO.5670/2016 & 31 OS.No.5670 & 5674 / 2016 COPY 5674/2016 are hereby partly decreed.
The defendant in OS.No.5670/2016 or her person/agents or any henchmen are hereby restrained by way of permanent injunction from interfering with suit schedule property which is in peaceful possession and enjoyment of the plaintiff without due process of law.
The defendant in OS.No.5674/2016 or her person/agents or any henchmen are hereby restrained by way of permanent injunction from interfering with suit schedule property which is in peaceful possession and enjoyment of the plaintiff without due process of law.
Inview of relationship between the parties, they are directed to bear their own costs.
Draw decree accordingly.
Original judgment be kept in main suit ie., OS.NO.5670/2016 and copy shall be retained in OS.NO.5674/2016.
[Dictated to the Judgment Writer directly on computer, computerised and print out taken by him, corrected and then pronounced by me in the open court, this day the 3rd October 2020.] (SADANANDA NAGAPPA NAIK) XVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU 32 OS.No.5670 & 5674 / 2016 COPY AN N E XU RE
1. No.of witnesses examined on behalf of plaintiff/s :
PW1 : T.K.Vittal. PW2 : Shivakumar
2. No.of documents marked on behalf of plaintiff/s :
Ex.P1 : Sale deed dtd.26.6.1980 Ex.P2 & 3 : Katha certificate and extracted Ex.P4 & 5 : Sanctioned plans Ex.P6 : Will dtd.26.6.2000 Ex.P7 : Endorsement issued by Elders helpline Ex.P8 & 9 :True copy of complaint dtd.28.2.2016 with Ack.
Ex.P10 : Loan clearance certificate issued by Vysya Bank Ex.P11 : Loan clearance certificate issued by Syndicate Bank Ex.P12 : Bank Pass Book Ex.P13 : CC case records from office of Basavanagudi elders helpline Ex.P14 : Police complaint dtd.13.1.2017 with Ack. Ex.P15 : Police complaint dtd.20.5.2017 Ex.P16 : Police complaint dt.26.5.2017 with ack. Ex.P17 : Discharge summary with medical reports Ex.P18 to 23: Electricity bills with payment receipts Ex.P24& 25: Water bill with receipts Ex.P26 & 27: Tax paid receipts Ex.P28 : CC of cancellation of Will Ex.P29 : CC of gift deed Ex.P30 : Encumbrance certificate Ex.P31 to 35:Writing made on backside of the cheque Ex.P36 : Copy of Katha certificate Ex.P37 : CC of order in case No.MSC/CR/41/2017-18.
3. No. of witnesses examined on behalf of defendant/s :
DW1 : Shobha A Rao
33
OS.No.5670 & 5674 / 2016
COPY
4. No. of documents marked on behalf of defendant/s :
Ex.D1 : Letter dtd.12.1.2012
Ex.D2 : Letter dtd.30.8.2012
Ex.D3 : Letter dtd.8.11.2007
XVIII Addl. City Civil Judge
Bangalore City.
34
OS.No.5670 & 5674 / 2016
COPY
Judgment pronounced in the open court vide separate judgment. The operative portion of judgment reads thus:
O R DE R Suit of the plaintiff in OS.NO.5670/2016 & 5674/2016 are hereby partly decreed.
The defendant in OS.No.5670/2016 or her person/agents or any henchmen are hereby restrained by way of permanent injunction from interfering with suit schedule property which is in peaceful possession and enjoyment of the plaintiff without due process of law.
The defendant in OS.No.5674/2016 or her person/agents or any henchmen are hereby restrained by way of permanent injunction from interfering with suit schedule property which is in peaceful possession and enjoyment of the plaintiff without due process of law.
Inview of relationship between the parties, they are directed to bear their own costs.
Draw decree accordingly.
Original judgment be kept in main suit ie., OS.NO.5670/2016 and copy shall be retained in OS.NO.5674/2016.
XVIII Addl.C.C. & S.J., Bangalore