Karnataka High Court
M G Chandra Shekar vs P Kanakambara Rao on 22 April, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.F.A.NO. 1007 OF 2009 (DEC)
BETWEEN:
M G CHANDRA SHEKAR
S/O M.R.GANGADHARA RAO
AGED ABOUT 51 YEARS
NO.3738, 1ST FLOOR, VENKUSAHUJI LANE
BANGALORE-53
...APPELLANT
(BY SRI H.V. NAGARAJA RAO, ADVOCATE)
AND:
1. P KANAKAMBARA RAO
A/A 73 YRS
S/O KRISHNA MURTY(LATE)
SINCE DECEASED BY HIS LRS
A. SMT CHANDRAMMAL
65 YRS, W/O KANAKAMBARA RAO
B. P.KRISHNA MURTHY
A/A 47 YEARS,
S/O KANAKAMBARA RAO
C. VENKATAMURTHY RAO
A/A 41 YEARS,
S/O KANAKAMBARA RAO
2
D. P.V.M.SHARATHCHANDRAN
A/A 31 YEARS,
S/O KANAKAMBARA RAO
ALL ARE R/AT NO.16, NEW NO.56,
NEW TANK ROAD, NUNGAMBAKKAM,
CHENNAI-600034
2. NARENDRA RAJU
S/O SAMPANGIRAM RAJU
VASUDEVA POWER ROLLING MILLS
NO.9, 27TH CROSS, R.T.STREET
BANGALORE
R/A NO.52, VENKATESHWARA BLDG,
BANGALORE-53
SINCE DECEASED BY LRs
A. N.SRINIVASA RAJU
AGED ABOUT 37 YEARS,
S/O NARENDRA RAJU
B. VANAJAKSHI
AGED ABOUT 54 YEARS
W/O NARENDRA RAJU
C. SMT.RATNASREE
A/A 40 YEARS,
D/O NARENDRA RAJU
D. SMT.SHYLASHREE
A/A 35 YEARS,
D/O NARENDRA RAJU
E. N.RAVI KUMAR
A/A 34 YEARS,
S/O NARENDRA RAJU
ALL R/AT NO.52, VENKATESHWARA BUILDING,
R.T.STREET, BANGALORE-53
3
3. SUGANA INDUSTRIES
REP BY ITS MANAGING PARTNER
NO.9, 27TH CROSS, R.T. STREET,
BANGALORE-53
4. N.SRINIVASA RAJU
S/O NARENDRA RAJU
A/A 37 YEARS,
NO.9, 27TH CROSS, R.T.STREET,
BANGALORE-53
...RESPONDENTS
(BY SRI.V B SHIVAKUMAR, ADVOCATE FOR R1[A-D];
R2(B) AND R4 ARE SERVED;
V/O DTD 05/01/2010 NOTICE TO R2(A) H/S;
V/O DTD 07/04/2010 NOTICE TO R2(C AND D) H/S;
V/O DTD 15/09/2010 NOTICE TO R2(E) AND R3 D/W)
THIS RFA IS FILED U/S 96 OF CPC, R/W, O 21, R 103 OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED 15.09.2009
PASSED IN EX.NO.1823/2001 ON THE FILE OF THE XIV ADDL.
SMALL CAUSES JUDGE, BANGALORE, DISMISSING THE PETITION
FILED BY THE 2ND OBJECTOR U/O 21 R 97 OF CPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 01.04.2022, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
4
JUDGMENT
The captioned appeal is filed by the third party applicant feeling aggrieved by the order dated 15.09.2009 passed on an application filed under Order 21 Rule 97 of CPC by the Executing Court in Ex.P.No.1823/2001.
2. For the sake of convenience, the parties are referred to as per their rank before the Court below.
3. The facts leading to the case are as under:
The decree holders who are the legal representatives of original decree holder in HRC.No.1862/1996 have filed the execution petition in Ex.P.No.1823/2001 seeking possession from the judgment debtors based on decree passed in HRC.No.1862/1996. The third party applicant has filed an obstruction application under Order 21 Rule 97 of CPC by specifically alleging that his father M.R.Gangadhara Rao has succeeded to the petition property as a legatee pursuant to Will executed by the original owner namely Mathrubhai 5 Rayappa under Will dated 03.12.1960 and his father namely M.R.Gangadhara Rao has in-turn bequeathed the petition property under Will dated 10.04.2001. The third party applicant also claimed that the tenants have vacated petition premises and have delivered possession and therefore, asserts independent right over the petition property. The decree holders have filed detailed objections to the third party application.
4. Based on rival contentions, the Executing Court formulated the following issues:
"1. Whether the 2nd objector proves that his father Sri.M.R.Gangadhara Rao has succeeded to the petition schedule property as a legatee under an unregistered will deed dated: 03.12.1960 alleged to be executed by late Sri.Mathrubbhai Rayappa?
2. Whether the 2nd objector further proves that he has succeeded to the petition schedule property from his father under the will deed dated: 10.04.2001 as per Ex.A.21 as alleged?6
3. Whether the 2nd objector further proves that he is in possession of the property in dispute in his own independent right as alleged in the application?
4. Whether the LRs of the deceased decree- holder prove that their father late Sri.Kanakambara Rao got the schedule premises by virtue of registered gift deed as per Ex.R.5?
5. Whether the LRs of deceased decree-holder further prove that they have got lawful title over the petition schedule premises and entitle to recover possession of the same from the judgement debtor under decree in HRC.1862/1996 dated: 30.11.2000 as alleged?
6. Whether the application filed by the 2nd objector is barred by law of Limitation as alleged?
7. What order?"
5. The third party applicant/second objector to substantiate his claim examined himself as AW.1 and examined one witness as AW.2 and adduced documentary evidence vide Exs.A-1 to A-35. The decree holders to counter the claim of third party applicant examined one of the decree 7 holder as RW.1 and adduced rebuttal documentary evidence vide Exs.R-1 to R-40.
6. The Executing Court having examined the material on record has negatived the contentions raised by the present applicant/second objector. The Executing Court was of the view that the third party applicant having placed reliance on the Will as per Ex.A-21 has, however, not led in evidence in terms of Section 63(c) of Indian Succession Act read with Section 68 of Indian Evidence Act. Therefore, the Executing Court answered point Nos.1 and 2 in the negative and held that the third party applicant has utterly failed to prove the due execution of the Wills as per Exs.A-11 and A-21. The Executing Court was of the view that third party applicant has failed to establish that his father M.R.Gangadhara Rao has acquired right and title based on Will executed by the original owner Mathrubhai Rayappa. The Executing Court was also of the view that third party applicant having set up a Will as per Ex.A-21 has not examined the attesting witness. Therefore, 8 the Executing Court was of the view that the third party applicant has not acquired any right and title based on the Wills set up while objecting the execution of decree.
7. The Executing Court while dealing with point Nos.3 to 6 has also held that the third party applicant has failed to prove that he is in possession of the property in dispute. The Executing Court while referring to the title documents vide Ex.R-5 which is a registered gift deed executed by the original owner namely Mathrubhai Rayappa has come to conclusion that late father of decree holders namely Kanakambara Rao acquired right under registered gift deed and therefore, the decree holders are entitled to recover possession from the judgment debtors pursuant to decree passed in HRC.No.1862/1996.
8. Feeling aggrieved by the order of the Executing Court, the present appeal is filed by the third party applicant. 9
9. Learned counsel appearing for the third party applicant reiterating the grounds urged in the appeal memo would strenuously argue and contend that the gift deed dated 06.07.1938 in favour of decree holders father was never accepted by the donee and possession was never delivered consequent to gift deed. Taking this Court through voluminous records, learned counsel for the third party applicant would point out that the original owner Mathrubhai Rayappa continued in possession of the property without handing over the same to Kanakambara Rao and it is Mathrubhai Rayappa who is in exclusive possession till his death i.e., 21.06.1961 and therefore, he would contend that in terms of Section 122 of Transfer of Property Act, 1882, the gift was never acted upon and therefore, the decree holders father Kanakambara never acquired right and title under the gift deed.
10. Referring to the recitals in the gift deed, he would bring to the notice of this Court that the gift deed as per Ex.R-5 was in favour of a minor and only donor has signed 10 and there is no second party. Therefore, he would contend that all these significant details would clearly establish that the donee never accepted the gift and the acceptance of gift being a pure question of fact has to be proved in accordance with law and no presumption lies under law. He would point out that till this day, the original gift deed is not produced and between 1938 to 1961, donee has not done any acts which indicates gift deed was acted upon.
11. To buttress his arguments, he has placed reliance on the judgment rendered by the Hon'ble Apex Court in the case of Baby Ammal vs. Rajan Asari1. Placing reliance on the said judgment, he would contend that the principles laid down in the aforesaid judgment are squarely applicable to the present case on hand. Even in the present case, though Mathrubhai Rayappa gifted the property way back in 1938, the grandfather of third party applicant continued to assert title over the petition property during his lifetime and was in fact 1 (1997) 2 SCC 636 11 enjoying the property as full owner during his lifetime and therefore, he would contend that inspite of gift deed in favour of decree holders father, the original owner never divested the title and more particularly possession.
12. Reiterating on the same line, he would further place reliance on the judgment rendered by the Hon'ble Apex Court in the case of Daulat Singh (Dead) Through Legal Representatives vs. State of Rajasthan and Others2 and would contend that for a valid gift, acceptance of gift is mandatory and the same has to be made by the donee during the lifetime of donor and unless there is no acceptance, the gift deed is not complete. To counter the claim of the decree holders, he would also point out that it is the third party applicant's father M.R.Gangadhara Rao who was asserting title after the death of Mathrubhai Rayappa and was also collecting rents. The donee never got his name mutated based on the registered gift deed.
2 (2021) 3 SCC 459 12
13. The second limb of arguments canvassed by learned counsel for third party applicant is that the tenant has never disputed the title of third party applicant. He would point out that tenant has admitted that it is the third party applicant who is the landlord. On the contrary, tenant has seriously disputed the jural relationship with the decree holders. He would further point out that tenant handed over possession in the eviction proceedings initiated by the third party applicant in HRC.No.1939/1996 and therefore, would vehemently argue and contend before this Court that Rent Court loses jurisdiction the moment possession was handed over by tenant. He would further contend that tenant handed over possession on 17.01.2000 and therefore, the eviction order passed in HRC.No.1862/1996 on 30.11.2000 is of no consequence.
14. Learned counsel would further point out that the clinching evidence would clearly establish that the rent receipts issued by the tenant are in fact in the name of third 13 party applicant. Relying on the rent receipts at Exs.A-24 and A-25, he would also contend that the material on record does not indicate that donor has accepted rents on behalf of minor donee. He would further contend that decree holder has admitted that third party applicant was collecting rent and the clinching evidence also indicates that it is the third party applicant who is in possession and therefore, he would contend that the present execution petition is not at all maintainable against the tenant who has already lost possession.
15. Learned counsel appearing for the third party applicant has further placed reliance on the following judgments:
1. Har Vilas Vs Mahendranath 7 Ors reported in 2011 (15) SCC 377.
2. Nusservani E Vs. Shirinbai F reported in 1984 SCC Online Bom 6.
3. Ashan Devi Vs. Phulwasi Devi reported in 2003 (12) SCC 219.14
4. Sameer Singh Vs. Abdul Rab reported in 2015 (1) SCC 379.
5. Tanzeem-E-Sufia Vs. Bibi Haliman reported in 2002 (7) SCC 50.
6. Asgar Vs. Mohan Varma reported in 2020(16) SCC 230.
7. Vigneswarapu Jaggaraju Vs. Gitta Seetha Ratnam reported in 2007 (1) A.P.L.J 370.
8. Brihan Mumbai Mahanagar Palike Vs. Akruti Nirman reported in 2008(3) SCC 78.
9. Ambikamba Vs. Rangaswamy reported in 2005 (9) SCC 374.
10. Ram Niwas Gupta Vs Mumtaz Hasan reported in 2008 (17) SCC 362.
11. Sanjan Singh Rawat Vs NSIC & Ors reported in 2005 (12) SCC 146.
12. Rama Pulp & Papers Ltd Vs. Maruthi N.Dhotre reported in 2005 (12) SCC 186.
13. Sarwan Kumar Vs. Madan Lal Aggarwal reported in 2003 (4) SCC 147."
16. Per contra, learned counsel appearing for the decree holders would bring to the notice of this Court that the present appeal arises out of an application filed under Order 15 21 Rule 97 of CPC. Therefore, he would contend that the third party applicant under the garb of obstruction cannot question the decree and such a recourse is not permissible under Order 21 Rule 97 of CPC. He would further contend that it is more than a trite that Executing Court cannot go beyond a decree. He would point out that the stand taken by third party applicant is quite oscillating. The present application is filed asserting right on the basis of Wills dated 03.12.1960 and 10.04.2001 as per Exs.A-11 and A-21. While during trial, the third party applicant has also asserted right on the basis of collusive decree wherein third party applicant alleges that suit property is allotted to his share which is evident from Ex.A-32. He would further contend that third party applicant has given up his claim under the Will and the learned counsel appearing for the applicant has also conceded that he has not at all canvassed any arguments relating to the right and title of applicant based on will. If applicant has given up his claim on 16 the basis of will, then his application has to be out-rightly rejected.
17. While countering the third party applicants claim that tenant has delivered possession in HRC.No.1939/1996 filed by the third party applicant, he would seriously dispute the said fact and to counter the same, would request this Court to examine the order sheet in HRC.No.1939/1996. By taking this Court through the order sheet, he would submit to this Court that the alleged memo does not bear a date and the Rent Court has not passed any order on the memo. He would also point out to this Court that there is foul play at the hands of the third party applicant in HRC.No.1939/1996. Admittedly, the alleged memo is filed by an Advocate with initial SSM whereas the Advocate on record is one with initial MCR. Therefore, he would contend that the tenant never delivered possession to the third party applicant and therefore, he would contend that the contention that possession was delivered has to be out-rightly rejected.
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18. Learned counsel would seriously question the very maintainability of the third party application in the present case on hand and to substantiate the said contention, he would straight away take this Court to the cause title of HRC.No.301/1997. The said petition was filed by the tenant by impleading the decree holders as well as the third party applicant seeking permission to deposit the rent. It is in this background, learned counsel appearing for the decree holders would submit that third party applicant was aware of the eviction petition filed by decree holders in HRC.No.1862/1996. Therefore, he would contend that the third party applicant who was a party to the proceedings cannot maintain the third party application under Order 21 Rule 97 of CPC.
19. Taking this Court through the minute details, learned counsel for the decree holders would further vehemently argue and contend before this Court that decree holders had filed a bare suit for injunction against the tenant in O.S.No.2843/1997 and the same was decreed on 18 23.06.1999. Referring to the decree passed in the above said suit, he would submit to this Court that two relevant factors would stand established. Since tenant was aware of the decree holders title, he could not have delivered possession in favour of third party applicant. Secondly, the decree passed in O.S.No.2843/1997 would clearly establish that gift deed is acted upon.
20. Countering the contentions raised by third party applicant in regard to validity of gift deed, he would place reliance on the judgment rendered by the Hon'ble Apex Court in the case of K.Kamalam vs. K.Balakrishnan and Others3. Placing reliance on the principles laid down in the aforesaid judgment, he would contend that where a gift is in favour of a minor, merely because donor retained possession, would not in itself render gift deed in favour of minor ineffective. Referring to the provisions of Sections 122, 126 and 127 of Transfer of Property Act, he would further argue and contend 3 AIR 2004 SC 1257 19 that when there is a gift in favour of minor, there is implied acceptance of gift and therefore, non-delivery of possession of gifted property and other consequential incidents are not the circumstances negativing the presumption of implied acceptance of gift by minor and therefore, would contend that gift is not revocable.
21. Learned counsel would further contend that on reading the averments made in the third party application would clearly reveal that third party applicant is claiming under Mathrubhai Rayappa i.e., the donor and therefore, in absence of independent title, the third party applicant cannot maintain the present application. To buttress his arguments, he has placed reliance on the judgment rendered by the Hon'ble Apex Court in the case of Silverline Forum Pvt. Ltd. vs. Rajiv Trust and Another4. The fact that third party applicant has set up Will, cannot seek adjudication of his rights 4 AIR 1998 SC 1754 20 under Order 21 Rule 97 of CPC, and the remedy under Rule 97 is not at all applicable to the third party applicant.
22. By way of reply, learned counsel for third party applicant would contend that since gift deed is not acted upon, the appellant need not establish his right and title and therefore, he would contend that there are no material on record to show that donee accepted the gift before 1961 i.e., before death of donor. Distinguishing the facts and circumstances which had arisen for consideration in the case of Silverline Forum Pvt. Ltd., (supra), he would contend that the said principles are not applicable to the present case on hand. By way of reply, he would submit that the order passed in HRC.No.301/1997 is nonest and without jurisdiction. He would contend that the Rent Court cannot decide title insofar as decree passed in O.S.No.2843/1997. He would contend that the said suit was filed only to create records and since the prayer was only not to construct a wall and an injunction was sought against the tenant, tenant was justified 21 in not contesting the case. He would conclude his arguments by contending that merely because third party applicant was party to HRC.No.301/1997, he is not barred from filing third party obstruction application and therefore, would request this Court to reverse the decree passed by the Executing Court.
23. Heard learned counsel appearing for the third party applicant and learned counsel appearing for the decree holders. Perused the pleadings averred in the third party application as well as objections and also the ocular and documentary evidence.
24. The following points would arise for consideration before this Court:
1) Whether the Executing Court was justified in holding that the present third party applicant/second objector has failed to prove that he has succeeded to the petition property from his father M.R.Gangadhara Rao under Will dated 10.04.2001 as per Ex.A-21?22
2) Whether the finding of the Executing Court that third party applicant/second objector has failed to prove that he is in possession of the property in his own independent right is perverse, palpably erroneous and contrary to evidence on record?
3) Whether the finding of the Executing Court that the decree holders have succeeded in establishing their lawful title over the petition schedule premises and therefore, they are entitled to recover possession in terms of decree passed in HRC.No.1862/1996 is perverse and palpably erroneous?
Re: Point Nos.1 and 2:
25. The third party applicant filed an application under Order 21 Rule 97 of CPC and resisted the execution of decree by asserting right on the basis of Will executed by his father M.R.Gangadhara Rao and also claimed that gift deed executed by Mathrubhai Rayappa in favour of decree holders father Kanakambara Rao is fraudulent document and the same is not 23 acted upon. Though learned counsel for third party applicant made a statement before this Court that his client is not pressing his claim based on Will dated 10.04.2001 as per Ex.A-21 but this Court has to examine whether third party applicant has made out a case that the decree passed in HRC.No.1862/1996 is not executable.
Re: possession:
26. On meticulous examination of the petition filed under order 21 Rule 97, the relevant averments made in the affidavit filed in support of application would be relevant to decide the lis between the parties. In the third party application, the present applicant has claimed that on the death of Mathrubhai Rayappa, his son M.R.Gangadhara Rao succeeded to the estate as a legatee and came in possession. Therefore, third party applicant claims that his father was in possession and enjoyment of the schedule premises. The third party applicant at paragraph 5 has further pleaded that judgment debtor i.e., Narendar Raju has vacated and handed 24 over vacant possession of the premises and thereafter, Gangadhara Rao leased the premises in favour of one Srinivasa Raju and therefore, at paragraph 5 of the application, the third party applicant claims that he is in symbolic possession of the property. In the preceding paragraph, the third party applicant also claims that tenant has filed a memo in HRC.No.1939/1996 and had handed over possession to his father Gangadhara Rao on his own accord.
27. If the third party applicant has given up claim under Will, then the finding recorded by the Executing Court on point Nos.1 and 2 cannot be examined by this Court. The said findings recorded by the Executing Court on point Nos.1 and 2 relating to Will dated 03.12.1960 alleged to have been executed by Mathrubhai Rayappa in favour of third party applicant's father and subsequently Will dated 10.04.2001 executed by third party applicant's father would attain finality. If applicant has given up his claim under Will alleged to have been executed by his father, the question that needs to be 25 examined by this Court is whether applicant has locus standi to obstruct the execution of a decree against the judgment debtors. The applicant is placing heavy reliance on the fact that the gift deed was never acted upon and the tenant by filing a memo has delivered possession to the applicant on 17.01.2000 in HRC.No.1939/1996. On perusal of the order sheet in HRC.No.1939/1996, this Court would find that no such memo is forthcoming from the records and the Rent Court has not passed any order on the alleged memo. The petition filed by the applicant in HRC.No.1939/1996 was rejected by the Rent Court by order dated 31.01.2000. While the Rent Court allowed the petition filed by the decree holders in HRC.No.1862/1996 by order dated 30.11.2000 which is sought to be executed in the present execution petition.
28. The material on record would clearly reveal that the present applicant and decree holders were arrayed as respondents in HRC.No.301/1997. The tenant was compelled to file a petition as there was inter se dispute and two 26 petitions were filed against the tenant. Therefore, the present applicant was well aware of the eviction petition filed by the decree holder in HRC.No.1862/1996. HRC.No.301/1997 was decided on 23.08.1997 and the Rent Court directed the tenant/judgment debtor to deposit the rent in either of the proceedings. The Rent Court has rejected the petition filed by the applicant in HRC.No.1939/1996 and has allowed the petition filed by the decree holder. Therefore, the applicant cannot assert and claim that he is a third party to the present execution petition. What emerges from the material on record is that applicant cannot claim that he is a stranger to the decree and further no materials are placed on record to indicate that he is in possession of the suit schedule premises. The contention of the applicant that the gift deed was not at all acted upon and therefore, the decree in HRC.No.1862/1996 is not executable is misconceived and the same cannot be acceded to.
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29. Under Rule 101 of Order 21, all questions relating to right, title and interest in the property arising between the parties to a proceeding on an application filed under Rule 97 or Rule 99 has to be determined by the Executing Court. Therefore, a third party who claims to be in possession of the property forming the subject matter of decree in his own right is entitled to seek adjudication under Rule 97. The words incorporated in Rule 101 indicating that all questions relating to right and title or interest in the property necessarily means and presupposes that the applicant has a better title and independent of decree holder. In the present case on hand, the application came to be filed by asserting right under a Will. Having suffered an order at the hands of the Executing Court, the applicant has given up his claim based on a Will. Now before this Court, a feeble attempt is made by the applicant to resist the execution of decree on the ground that the gift deed executed by Mathrubhai Rayappa is not acted upon. Such a recourse is not available to the applicant and the Executing 28 Court is not vested with jurisdiction to examine the validity or otherwise of the gift deed executed by the original owner in favour of decree holders father way back in 1938.
30. The judgment cited by learned counsel appearing for the decree holders in the case on Silverline Forum Pvt. Ltd. (supra) is squarely applicable to the present case on hand. The Hon'ble Apex Court at paragraph 12 has held as under:
"12. The words "all questions arising between the parties to a proceeding on an application under Rule 97" would envelop only such questions as would legally arise for determination between those parties. In other words, the court is not obliged to determine a question merely because the resistor raised it. The questions which executing court is obliged to determine under rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g. if the obstructer admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was 29 unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree-holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructer must legally arise between him and the decree-holder. In the adjudication process envisaged in order 21 Rule 97(2) of the Code, execution court can decide whether the question raised by a resistor or obstructer legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section."
(emphasis supplied)
31. What emerges from the above said principles laid down by the Hon'ble Apex Court is that the applicant cannot question the gift deed in the present execution proceedings. The Rent Court has passed an order thereby directing the judgment debtor to handover vacant possession and the decree passed in HRC.No.1862/1996 is sought to be executed by filing execution petition. Therefore, while obstructing, 30 applicant is required to establish that he has independent title and therefore, the decree is not at all executable.
32. In an enquiry under Rule 97 of Order 21 of CPC, the person obstructing delivery of property has to not only prove his possession but has to establish further that his possession was not obtained from or under the judgment debtor. Strangely, the third party applicant is virtually tracing his possession through the judgment debtor. The applicant has given up his claim under the alleged Will before this Court. Therefore, though obstruction application is filed, no independent title is claimed. There is no material on record to demonstrate that third party applicant is in physical possession of the suit schedule premises. Admittedly, the present application is filed under Order 21 Rule 97 of CPC and not under Section 47 of CPC under which the Executing Court is enjoined and vested with jurisdiction to determine all questions arising between the parties to the suit in which decree is passed.
31
33. It is more than a trite that obstructionist is confined to his locus and a status of opponent on an application under Order 21 Rule 97 of Code is one of obstructionist. Rules 97 to 101 of Order 21 clearly demarcates and keep apart the locus and status of obstructionist as against the judgment debtor and to take a view that he could raise any and all objections would extend the locus and status of the obstructionist to that of a judgment debtor is not permissible under Order 21 of the Code. It is in this background, this Court is not impressed with the contentions canvassed before this Court by the third party applicant wherein an attempt is made to enlarge the scope of enquiry by questioning the very validity of gift deed executed way back in 1938. It is impermissible to read Order 21 Rule 97 in such a manner so as to compel the Executing Court to adjudicate the questions regarding the title of decree holder on an application filed by the third party. Though the provisions of amended Rule 101 are comprehensive and mandatory and all questions relating to right, title and interest 32 in the property are to be decided, under the garb of such an enquiry, the third party applicant cannot question the validity of the gift deed which would not arise for consideration and the challenge to the gift deed would not arise for consideration and cannot be raised in an obstruction application.
34. The question which the Executing Court is obliged to determine under Rule 101 must possess two adjuncts. First is such questions must have legally arisen between the parties and the second is that such questions must be relevant for consideration and determination between the parties. The third party applicant having claimed to be a legatee under his father Gangadhara Rao has based his title on the basis of a Will. The third party applicant further traces his father's title through Will executed by original owner Mathrubhai Rayappa under Will dated 03.12.1960. Therefore, even otherwise, even if the Will executed by the original owner Mathrubhai Rayappa is taken as a genuine document, even then the father of third party applicant would not acquire any right and title under the 33 Will as the original owner has already gifted the property way back in 1938. The consequence of gift and its validity and whether such a gift was not acted upon and whether it is a fraudulent document are all questions which do not fall within the purview of enquiry enshrined under Order 21 Rule 101 of CPC. The materials placed on record and contentions raised by the applicant do not fall within the ambit of Rule 101 and therefore, no adjudication is warranted.
35. The applicant has failed to produce better title documents and therefore, this Court is of the view that he has no locus standi to resist the third party application more particularly when he has given up his claim under the Will. Therefore the challenge to the gift deed in the present execution petition would not arise for consideration and the validity of the gift deed is not at all relevant and the same would not arise for consideration and determination between the parties. The challenge to the gift deed would also not legally arise in the execution proceedings. Therefore, the 34 obstruction application has to fail as applicant has failed to make out a better title. Therefore, in the light of observations made supra, this Court is of the view that the validity of the gift deed and the question as to whether it was acted upon are beyond the scope of enquiry contemplated under Rule 101 of Order 21 of CPC. Therefore, there is no need to examine the judgment cited by the learned counsel for the decree holders in regard to validity of gift deed in favour of a minor. Accordingly, point No.1 is answered in the affirmative and point No.2 is answered in the negative.
Re: Point No.3:
36. The decree holders are asserting right and title on the basis of gift deed executed by original owner Mathrubhai Rayappa as per Ex.R-5. This registered gift deed is of the year 1938. The decree holders have adduced voluminous documentary evidence namely assessment extracts for the year 1985-89 as per Ex.R-8 and for the year 1989-99 as per Ex.R-9 and from 1999-2006 as per Ex.R-12. The decree 35 holders have also produced Katha certificate, tax paid receipts and encumbrance certificates. The exchange of legal notices also indicates that the parties have referred to gift deed from 1962 onwards. The fact that Mathrubhai Rayappa gifted the property in favour of decree holders father namely Kanakambara Rao is well within the knowledge of third party applicant as well as his ancestor Gangadhara Rao. The present execution petition is filed to execute the decree passed in eviction proceedings filed in HRC.No.1862/1996 and the present execution petition is filed to enforce the decree. The third party applicant claims that the gift deed is a fraudulent document and the same is not acted upon. Though third party applicant's father was aware of the registered gift deed in favour of Kanakambara Rao, in view of several correspondences made by the donee addressed to the third party applicant's father, it has to be presumed that due execution of gift deed was well within the knowledge of third party applicant's ancestor. The said gift deed has gone 36 unchallenged till this date. In that view of the matter, point No.3 formulated above is answered in the negative.
37. The third party applicant has also raised grounds finding fault with the Executing Court in not framing issues. While holding an enquiry under Order 21 Rule 101 of CPC on an application under Rule 97, the Executing Court is not enjoined by the statute to frame issue and dispose of the same in the same manner as a suit, nevertheless the Executing Court is under obligation to decide the dispute in a judicial manner. On examination of the material on record, the Executing Court has in fact formulated in all seven points and the parties have adduced voluminous evidence and the Executing Court has meticulously dealt with each of the contentions canvassed by the third party applicant. Having examined the rival contentions and documentary evidence and also bearing in mind the scope of enquiry under Rule 101 of CPC, the Executing Court has rightly rejected the application which is based on legal evidence adduced by the decree 37 holders. The order under challenge does not suffer from any infirmities and no error is made out by the third party applicant.
38. For the foregoing reasons, I pass the following:
ORDER The appeal is devoid of merits and the same is accordingly dismissed.
Sd/-
JUDGE CA