Bangalore District Court
Sri. P. Srinivas vs Smt. Nirmala John W/O Mr on 30 November, 2016
IN THE COURT OF THE XXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH-38), BANGALORE CITY.
PRESENT:
SRI. VENKATARAMAN BHAT, B.Sc.,., LL.B. (Spl.)
XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38)
BANGALORE
DATED: THIS THE 30TH DAY OF NOVEMBER 2016
OS.NO.3280 OF 2014
PLAINTIFF/S 1. SRI. P. SRINIVAS, AGED
ABOUT 61 YEARS, S/O PUTTE
GOWDA.
2. SRI. S. PRASANNA, AGED
ABOUT 32 YEARS, S/O P.
SRINIVAS.
3. SRI. S. JAGADISH, AGED
ABOUT 30 YEARS, S/O P.
SRINIVAS.
ALL ARE RESIDINGAT No. 612,
10TH 'A' CROSS, 5TH MAIN,
PIPELINE ROAD, SRINAGAR,
BANGALOER - 50.
(By Sri. P.S., Advocate)
Versus
DEFENDANT/S 1. SMT. NIRMALA JOHN W/O MR.
JOHN KURUVILLA, RESIDING
AT No. 44/1, BENSON CROSS
ROAD, BANGALORE - 560 046.
2
O.S.No. 3280 / 2014
2. SRI. B.T. BHASKAR, AGED
ABOUT 41 YEARS, S/O LATE
B.G. THIMMARAYAPPA,
RESIDING AT No. 345/C, 17TH
CROSS, INDEAL HOMES,
RAJARAJESHWARI NAGAR,
BANGALORE - 98.
3. SRI. DHARMAPALA M.K. AGED
ABOUT 51 YEARS, RESIDING
AT No. 713, 6TH MAIN,
VIJAYANAGAR, BANGALROE -
40.
4. SRI. V. KRISHNA MURTHY,
AGED AABOUT 46 YEARS, S/O
C.K. VENKATARAMANAPPA,
RESIDING AT No. 54, 12TH
CROSS, 19TH MAIN,
MUNESHWARA BLOCK,
AVALAHALLI, BANGALORE -
26.
5. SRI. RAVI SHANKAR, AGED
ABOUT 50 YEARS, S/O SRI. R.
VENKATANARAYANAPPA,
RESIDING AT No. 9, MOUNT
JOY ROAD,
HANUMANTHNAGAR,
BANGALORE - 19.
6. SMT. H.U. BHAGYALAKSHMI,
AGED ABOUT 46 YEARS, W/O
SRI. B.N. SREENATH,
RESIDING AT No. 802/994, 1ST
'E' MAIN ROAD, 2ND PHASE,
GIRINAGAR, BANGALORE - 85.
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O.S.No. 3280 / 2014
7. SRI. K. BASAVAN GOWDA,
AGED ABOUT 37 YEARS, S/O
K. KINNESHWARA GOWDA,
RESIDING AT No. 36, 13TH 'A';
CROSS, 1ST MAIN, KALAPPA
BLOCK, SRINIAGAR,
BANGALORE - 560 050.
8. THE MANAGER, THE BAHRAT
CO-OPERATIVE BANK
LIMITED, JAYANAGAR
BRANCH, BENGALURU.
(Defendant No.1 by Sri. K.P.M. Adv.
Defendants No.2 to 4 by Sri. N.S.
Adv.
Defendants No.7 - by Sri. M.M.A.
Adv.
Defendants No.5, 6 & 8 - Exparte)
Date of Institution of the 25.04.2014
suit
Nature of suit Suit for declaration and
permanent injunction.
Date of commencement of 11.11.2015
recording of evidence.
Date on which judgment 30.11.2016
was pronounced.
Total Duration. Years Months Days
02 07 05
XXXVII ACCJ, BANGALORE
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O.S.No. 3280 / 2014
JUDGMENT
Plaintiffs filed this suit for declaration and permanent injunction with the following reliefs.
(a) Of declaration declaring that the plaintiffs are the absolute owner of the suit schedule property.
(b) And declare that the sale deed dated 12.10.2001, which is registered as Document No. BNG (U)- KNGR 8979/2001-2002, registered before the Sub-Registrar, Kengeri, is void abinitio and not binding on the plaintiffs.
(c) And declare that the sale deed dated 10.03.2004 vide Document No. BNG (U)-KNGR/3559/2003-04 stored in CD No.KEN-1-35597-2003-04 registered before the Sub-Registrar, Kengeri, Bengaluru is void abinitio and not binding on the plaintiffs.
(d) And declare that the Sale deed dated 26.11.2009 vide Document No. RRN-1-02137-2009-10 stored in CD No. RRND25 dated 26.11.2009, registered before the Sub-Registrar, Rajarajeswari Nagar Bengaluru, is void abinitio and not binding on the plaintiffs.
(e) And declare that the Mortgage Deed dated 03.09.2013 vide Document No. JAY-
1/03850/2013-14 registered before the Sub- Registrar, Jayanagar, Bengaluru is void abinitio and not binding on the plaintiffs.
(f) Of permanent injunction against the defendants, their men, henchmen, agents or anybody is claiming through or under them from interfering with the peaceful possession of the plaintiffs of the suit schedule property.
5
O.S.No. 3280 / 2014 The schedule property is shown as under.
All that piece and parcel of residential site bearing No. 91, formed in Sy. No. 58, Old Pattanagere CMC Katha No. 58, situated at Halgevaderahalli Village, Kengeri Hobli, now called as Adithya Layout, Rajarajeswari Nagar, comes under BBMP, Bengaluru South Taluk, measuring East to West 30 feet and North to South 40 feet and bounded on the -
East by : Site No.92 West by : Site No. 90 North by : 30 feet road. South by : Site No. 99
2. The brief facts of the case are as follows.
Defendant No.1 was the absolute owner of Sy. No. 58 measuring 6 acres 27 guntas situated at Halgevaderahalli Village, Kengeri Hobli. A layout has been formed in this survey number. Defendant No.1 had executed a registered General Power of Attorney in favour of defendants No.2 to 4 to develop the entire land and execute the sale deeds in favour of the intending purchasers. Accordingly, defendants No.2 to 4 as General Power of Attorney holders of the defendant No.1 had executed A registered sale deed dated 13.09.2000 in respect of the suit schedule property. Plaintiffs paid and are paying taxes to the concerned authority. The 6 O.S.No. 3280 / 2014 plaintiffs have demolished 1 sq. ACC sheet house and covered the suit schedule property with a fence. Plaintiffs used to visit the suit schedule property regularly. In the month of March 2014 in second week the defendant came into the suit schedule property and informed that he had purchased the suit schedule property. Defendant No.7 gave a threat to take the possession of the suit schedule property. Then the plaintiffs came to know that fraud has been committed by all the defendants in respect of the suit schedule property. It is submitted that the same defendants No.2 to 4 as General Power of Attorney holders of the defendant No.1 had executed a registered sale deed in favour of defendant No.5 on 12.10.2001 in respect of the suit schedule property. Defendant No.5 in turn executed registered sale deed dated 10.03.2004 in favour of defendant No.6. Defendant No.6 also had executed a registered sale deed in favour of defendant No.7 on 26.11.2009. Defendant No.7 without any authority or right had executed mortgage deed in respect of the suit schedule property in favour of defendant No.8 Bank on 03.09.2013. It is submitted that all the 7 O.S.No. 3280 / 2014 subsequent sale deeds as referred above are void and not binding on the plaintiffs. It is submitted that since there is denial of the title of the plaintiffs over the suit schedule property, plaintiffs were constrained to file this suit. It is further stated that since the plaintiffs are in possession of the suit schedule property a consequential relief of permanent injunction is also sought.
3. On being summoned defendants No.1, 2 to 4 and 7 put appearance through their advocates and filed written statement. Whereas defendant No.5, 6 & 8 remained absent. They were placed exparte.
4. Defendant No.1 has duly admitted the execution of the registered General Power of Attorney in favour of defendants No.2 to 4 on 03.05.2000. Defendant No.1 admitted her title over the entire extent of 6 acres 27 guntas in Sy. No. 58 of Halgevaderahalli Hobli, Kengeri Hobli, Bengaluru. Defendant No.1 has also admitted the execution of the sale deed in favour of plaintiffs on 13.09.2000 by defendants No.2 to 4 as General Power of 8 O.S.No. 3280 / 2014 Attorney holders of the defendant No.1. According to defendant No.1 she is not aware regarding other allegations made in the plaint.
5. Defendants No.2 to 4 filed a separate written statement by admitting execution of the registered sale deed in respect of suit schedule property in favour of the plaintiffs on 13.09.2000. These defendants have also admitted execution of another sale deed in favour of defendant No.5 on 12.10.2001. It is submitted that sale deed executed in favour of the plaintiffs was under a mistaken belief that this property had not conveyed in favour of any other person. It is further submitted that the plaintiffs and defendant No.5 were informed to arrive for settlement on exchange of sites including compensation etc. However, no positive reply from plaintiffs nor defendant No.5. All other allegations are specifically denied by these defendants.
6. Defendant No.7 filed a separated written statement contending that the suit is not maintainable. According o 9 O.S.No. 3280 / 2014 this defendant he is in possession of suit schedule property and mortgaged the same in favour of defendant No.8 Bank on 03.09.2013. It is pleaded that this defendant is bonafide purchaser for valuable consideration in respect of the suit schedule property.
7. It is further submitted that since this defendant and his predecessor in title are owners in possession and enjoyment of the suit schedule property in adverse to the alleged ownership of the plaintiffs for more than 14 years. It is pleaded that defendant No.1 being a Christian did not obtain any probate and no title has been confirmed in her favour. It is pleaded that suit is barred by limitation. There is no change of Katha in favour of the plaintiffs which indicates that the plaintiffs are not in possession and enjoyment of the suit schedule property. On these grounds, the defendant prays to dismiss the suit with cost.
8. Out of the above pleadings, my predecessor has framed the following issues.
10
O.S.No. 3280 / 2014 (1) Whether the plaintiffs prove that they are the absolute owner and in possession over the suit schedule property?
(2) Whether the plaintiffs prove that, interference caused by the defendants?
(3) Whether the plaintiffs prove that, sale deed dated 12.10.2001, 10.03.2004, 26.11.2009 and mortgage deed dated 03.09.2013 are not binding on them?
(4) Whether defendant No.7 proves that he is in possession and owners of the suit schedule property by way of adverse possession?
(5) Whether defendant No.7 proves that, suit is not maintainable as contended in par 9 of the written statement?
(6) Whether defendant No.7 proves that court fee paid by the plaintiff is insufficient?
(7) What order or decree?
9. During the course of trial, plaintiff No.3 was examined as PW 1 and Ex.P1 to P20 got marked. Defendant No.7 was examined DW 1 and no documents got marked on behalf of this defendant. Other defendants did not enter into witness box.
11
O.S.No. 3280 / 2014
10. Heard arguments of learned counsel for the plaintiffs, defendant No.1, Defendants No. 2 to 4 and defendant No. 7.
11. My answers to the above issues are as under.
Issue No.1: In Affirmative
Issue No.2: In Affirmative
Issue No.3: In Affirmative
Issue No.4: In Negative
Issue No.5: In Negative
Issue No.6: In Negative
Issue No.7: As per final order, for the following.
REASONS
12. ISSUES No.1, 3 & 4: For the sake of convenience and also to avoid repetition of facts, I would like to discuss these three issues together. Apart from this, subject matter of these three issues are connected in such a way that it is just and proper to hold a common discussion. By holding common discussion no party will be put to any prejudice.
13. Plaintiffs claim their absolute right, title and interest over the suit schedule property by virtue of the registered sale deed dated 13.09.2000. The said original 12 O.S.No. 3280 / 2014 sale deed got marked as Ex.P2. It can be noticed that originally the father of defendant No.1 had acquired Sy. No. 58 of Halgevaderahalli Village, Kengeri Hobli, Bengaluru measuring 6 acres 27 guntas and after his death it was devolved upon the mother of the defendant No.1. There is material to show that mother of defendant No.1 had executed Will and bequeathed the entire property in favour of defendant No.1. Defendant No.1 had executed a registered General Power of Attorney in favour of defendants No.2 to 4 on 03.05.2000. Ex.P1 is the certified copy of the registered General Power of Attorney executed by defendant No.1. It further discloses that by virtue of this General Power of Attorney, defendant No.1 had authorized the defendants No.2 to 4 to form a layout in the said property and execute sale deed in favour of intending purchasers. On the strength of this General Power of Attorney number of sites have been formed and suit schedule property has been sold in favour of plaintiffs under a registered sale deed dated 13.09.2000 by defendants No.2 to 4, being the General Power of Attorney holders of defendant No.1. On going 13 O.S.No. 3280 / 2014 through Ex.P2, it can be noticed that plaintiffs had purchased the suit schedule property for a sale consideration amount of Rs. 80,000/-. The entire sale consideration amount has been received by the vendor. It further discloses that possession of the suit schedule property has been handed over to the plaintiffs. It is more relevant to extract the relevant recital of Ex.P2 which reads as under.
"The vendors have this day handed over the Xerox copy of GPA executed on 05.05.2000, vide No. 33, along with other copies of the records to the purchasers for their future reference and guidance along with possession of the schedule property."
14. It is pertinent to note that there is a clear recital in Ex.P2 to the effect that the possession of the schedule property has been handed over in favour of the plaintiffs. It is further contention of the plaintiffs that while this sale deed is subsisting, defendants No.2 to 4 being the General Power of Attorney holders of the defendant No.1 without the knowledge of plaintiffs had executed sale deed on 12.10.2001 in respect of the schedule property.Ex.P15 is the certified copy of the registered sale 14 O.S.No. 3280 / 2014 deed executed in favour of defendant No.5. Defendant No.5 in turn had executed a registered sale deed dated 10.03.2004 in respect of the suit schedule property in favour of the defendant No.6. Ex.P16 is the certified copy of the registered sale deed executed in favour of defendant No.6. Defendant No.6 had also executed a registered sale deed in favour of defendant No.7 in respect of the same schedule property on 26.11.2009. Ex.P17 is the certified copy of the registered sale deed executed in favour of defendant No.7. Defendant No.7 had mortgaged the suit schedule property in favour of defendant No.8 - Bank and executed registered mortgage deed dated 03.09.2013. In other words, in respect of the suit schedule property four registered sale deeds and one mortgage deed have been executed. It is pertinent to note that the defendant No.1 did not dispute the execution of General Power of Attorney in favour of defendants No.2 to 4. Likewise, defendants No.2 to 4, on the other hand, have duly admitted the execution of the sale deed in favour of plaintiffs as per Ex.P2. It is the contention of the defendants No.2 to 4 that on account of 15 O.S.No. 3280 / 2014 mistaken belief they executed a registered sale deed in favour of the plaintiffs. What is the mistaken belief is not disclosed in the written statement. Defendants No.2 to 4 did not enter into witness box. In other words, the defendants no.2 to 4 being General Power of Attorney holders of defendant No.1 had executed a registered sale deed in favour of plaintiffs and defendant No.5 on 13.09.2000 and 12.10.2001 respectively. Now the question for consideration is what is the position of law in such an event. According to defendant No.5 he has been put into possession of the suit schedule property by defendants No.2 to 4. Defendant No.7 also claims possession over the suit schedule property. As per Ex.P2 plaintiffs were put into possession of the suit schedule property as on the date of the registration of sale deed. At this stage, it is more useful to refer a decision reported in 2016 (2) KCCR 1655 (SMT. SIDDAMMA VS. BHAVANI HOUSING CO-OPERATIVE SOCIETY LIMITED, BANGALORE AND OTHERS). Hon'ble High Court of Karnataka in this decision held as under. 16
O.S.No. 3280 / 2014 "In Binny Mill Labour Welfare House Building Co- operative Society Limited Vs. D.R. Mruthunjaya Aradhya, 2008 (3) KCCR 1692, the first principles of law as to how such sale deeds executed in the face of a subsisting sale deed would be void ab- initio are succinctly and comprehensively discussed. The said decision would apply on all fours to the present case in so far as the invalidity of the sale deeds set up by respondents No.2 and 3 are concerned."
15. This court had an occasion to go through a judgment in case of BINNY MILL LABOUR WELFARE HOUSE BUILDING CO-OPERATIVE SOCIETY LIMITED VS. D.R. MRUTHUNJAYA ARADHYA, REPORTED IN 2009 (2) KAR.L.J. 291. It is more profitable to refer para 36 and 37 of the judgment, which enlighten this court to arrive for a proper finding on the subject matter of the suit. It is extracted as under.
"In the case of a sale deed executed and registered the owner completely loses his right over the property and the purchaser becomes the absolute owner. It cannot be nullified by executing a deed of cancellation because by execution and registration of a sale deed, the properties are being vested in the purchaser and the title cannot be divested by mere execution of a deed of cancellation. Therefore, even by consent or agreement between the purchaser and the vendor, the said sale deed cannot be annulled. If the purchaser wants to give back the property, it has to be by another deed of conveyance. If the deed is 17 O.S.No. 3280 / 2014 vitiated by fraud or other grounds mentioned in the Contract Act, there is no possibility of parties agreeing by mutual consent to cancel the deed. It is only the court which can cancel the deed duly executed, under the circumstances mentioned in Section 31 and other provisions of the Specific Relief Act, 1963. Therefore, the power to cancel a deed vests with a court and it cannot be exercised by the vendor of a property.........Both void and voidable instruments can be cancelled by the court. The cause of action for such an action is an apprehension, if such an instrument is left outstanding may cause serious injury to the person against whom the written instrument is void or voidable. Such a person has the discretion to approach a competent Civil Court for adjudging the said instruments to be delivered up and cancelled. Even though in law a void instrument is unenforceable, has no value in the eye of law, void absolute initio, the very physical existence of such a document may cause a cloud on the title of the party or cause injury or one can play mischief. Therefore, the law provides for cancellation of such instruments which are also non est, but which are in existence as a fact physically to get over the effect of such instrument. One such an instrument is registered, the said registration has the effect of informing and giving notice to the World at large that such a document has been executed. Registration of a document is a notice to all the subsequent purchasers or encumbrances of the same property. The doctrine of constructive notice is attracted. Therefore, the effect of registration of an instrument not only affects parties who may claim under them. Therefore, once such an instrument is ordered to be delivered up and cancelled an obligation is cast upon the court to send a copy of its decree to the officer in whose office the instrument was registered, so that such an officer shall notice on the copy of the instrument contained in his books the fact of its cancellation. Once such an entry is made in the books of the Sub-Regitrar about the 18 O.S.No. 3280 / 2014 cancellation of the registered instrument, it also acts as a notice of cancellation of the registered instrument, it also acts as a notice of cancellation of the said instrument.....".
16. It can be noticed that on 13.09.2000, defendants No.2 to 4 had executed sale deed as General Power of Attorney holder of the defendant No.1 in favour of plaintiffs by receiving sale consideration amount of Rs. 80,000/-. In other words, as soon as execution of registered sale deed, defendant No.1 lost her legal title over the suit schedule property. It can be noticed that after the execution of this sale deed the right, title and interest have been vested with plaintiffs. Once the right is vested with a person unless it is transferred by another conveyance deed, same cannot be divested. IN view of the above legal principle laid down in the decision referred supra, all subsequent sale deeds are null and void. No right has been created by virtue of Ex.P15 in favour of defendant No.5. Likewise no title, right has been confirmed in favour of defendant No.6 as per Ex.P16. It is relevant to note that since previous vendor of defendant No.7 had no rights to sell the suit schedule 19 O.S.No. 3280 / 2014 property in favour of defendant No.7, so called sale deed at Ex.P17 is also null and void.
17. It is not the case of either defendant No.1 nor defendants No.2 to 4 or defendant No.7 that sale deed executed in favour of plaintiffs as per Ex.P2 has been cancelled by another conveyance and plaintiffs had surrendered possession over the suit schedule property. When once the plaintiffs were put into possession of the suit schedule property, unless plaintiffs surrendered the possession over the suit schedule property, or deliver the possession of the suit schedule property, in favour of original vendor by an order of court or any other instrument, how could it possible to say that defendant No.5 has been put into possession of the suit schedule property as per Ex.P15. Likewise, defendant No.6 was not put into possession of the suit schedule property. This principle is squarely applicable to the sale transaction of defendant No.7 also. In other words, whatever the recital in Ex.P15 to P17 is nothing but a paper possession, but not actual possession over the suit 20 O.S.No. 3280 / 2014 schedule property. At no point of time, no site has been exchanged between the parties in a compromise or any other instruments. Plaintiffs are still owners in possession of the suit schedule property as per Ex.P2. According to defendant No.7 he mortgaged suit schedule property in favour of defendant No.8 Bank and obtained loan. When possession is not handed over in the eye of law, in favour of defendant No.7 how could it possible to say that defendant No.7 is in possession of the suit schedule property. Of course, defendant No.8 Bank remained exparte. In other words, there is no defence on the part of the defendant No.8 Bank. It is pertinent to note that Katha has not been changed by BBMP in favour of plaintiff=s till today. Plaintiffs have produced some tax paid receipts to show that they are using to pay the taxes. Law is well settled that tax paid receipts nor Katha Certificate are not the document of title and no right has been transferred by virtue of all these documents. Till today, no competent court set aside Ex.P2 sale deed executed in favour of plaintiffs. Taking into consideration, position of law as laid down in the decision 21 O.S.No. 3280 / 2014 referred supra, plaintiffs are the title holders of the suit schedule property with possession by virtue of Ex.P2. In other words, all subsequent sale deeds become null and void. It is held that all these sale transactions became void ab initio and non est. Accordingly, I answer issue No.1 & 3 in affirmative.
18. Defendant No.7 has pleaded that since he and his predecessors in title are in possession of the suit schedule property for more than 14 years, title has been confirmed by adverse possession. I have gone through the pleadings on the plea of adverse possession. It can be noticed that essential ingredients of adverse possession are not pleaded in written statement. More over already there is finding to the effect that plaintiffs are in actual possession of the suit schedule property. When plaintiffs are in actual possession of the suit schedule property, question of adverse possession set up by defendant No.7 does not arise. More over at one stage, defendant No.7 contended that he is the absolute owner of the suit schedule property. Alternatively he pleads that the title 22 O.S.No. 3280 / 2014 has been confirmed by way of adverse possession. In my view these two pleas are mutually destructive pleas and cannot be set up by defendant No.7. Since necessary ingredients of adverse possession are absent in evidence as well as pleadings of defendant No.7, I answer issue No.4 in negative.
19. ISSUE No.2: The subject matter of this issue regarding interference by the defendants over the suit schedule property. It is pleaded that in the second week of March 2014 defendant No.7 came to the suit schedule property and claimed that he had purchased the suit schedule property. There is clear denial of title of the plaintiffs over the suit schedule property by the defendants. There is material to show that plaintiffs had lodged a complaint against the defendants for committing tress-pass and other offences. The interference can be inferred from the conduct and assertion of rights by other defendants over the suit schedule property. Accordingly, I answer issue No.2 in affirmative.
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O.S.No. 3280 / 2014
20. ISSUE No.5: Defendant No.7 has taken up a contention in the written statement to the effect that defendant No.1 did not obtain any probate in respect of the Will and as such her right is not established. Of course, defendant No.7 did not expressly contend that the suit is hit by non-obtaining of probate, but the total meaning of the written statement of defendant No.7 can be gathered. During the course of argument, learned counsel for the defendant No.7 argued that since defendant No.1 did not obtain any probate in respect of Will, her title is not established. It discloses that the mother of the defendant No.1 by name Mrs. Chengamma had bequeathed the entire 6 acre 27 guntas of land in Sy. No. 58 of Halgevaderahalli Village, Kengeri Hobli, Bengaluru in favour of her daughter - defendant No.1 dated 01.03.1993. The said Chengamma died on 20.07.1993. It can be noticed that the defendant No.1 is a Christian by religion. As per Section 213 of Indian Succession Act, 1925, no right as executor or legatee can be established in any Court of Justice, unless a court of competent jurisdiction in India has granted probate of the 24 O.S.No. 3280 / 2014 Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed. There is amendment by the Central Government to the Indian Succession Act, with effect from 27.05.2002. As per this amendment this section shall not apply in case of Will made by Indian Christian. According to advocate for defendant No.7 since mother of the defendant No.1 died before coming into effect of amendment Act, defendant No.1 is required to obtain probate of the Will. It is pertinent to note that the prohibition under Section 213 of Succession Act is regarding establishing any right under Will without probate and that section cannot be understood as one by which the vesting of rights as per provisions of Will is postponed only obtaining of probate or letters of administration. Section 213 does not say that no person can claim as legatee or executor unless he obtains a probate of the Will, but only says that no right as an Executor or legatee can be established in any court without probate. It is well settled law that it is immaterial whether right under the Will is claimed as a 25 O.S.No. 3280 / 2014 plaintiff or as a defendant. The words of Section 213 are not restricted only to those cases where the claim is made by a [person directly claiming as a legatee. In the case on hand, though the mother of the defendant No.1 died in the year 1993, defendant No.1 is claiming or establishing her right during the year 2014. In other words, the defendant No.1 is claiming or establishing her right subsequent to the amendment introduced by the Central Government to Section 213 of Indian Succession Act. That being the position, there is no necessity to obtain probate. The learned counsel for the plaintiffs referred one decision of Hon'ble High Court of Kerala, reported in AIR 1998 KER 160 (KALARIKKAL THRESSIAMMA AND ANR. VS. KALLIDUKKANANIKKAL JOSEPH). It is held as under.
"3. There cannot be any dispute that there is no bar for a Mohammedan or Christian to get the Will probated if they choose. The bar under Sub-section (1) to Section 213 is to the effect that unless a Will is probated, no rights as an executor or legatee can be established. IN other words, without probating a Will, the legatee is not entitled to claim the benefits under the Will. This restriction is now lifted to Christians. There is no need for a legatee to get the Will probated. However, this provision does not bar a legatee to get a Will probated if he desires. By 26 O.S.No. 3280 / 2014 reading sub-section (2), no inference can be drawn to the effect that there is a bar for Mohammedans or Christians from getting a Will probated."
21. That being the position of law, there is no merit in the contention of the defendant No.7 that obtaining probate by defendant No.1 is necessary. More over, this matter is not the subject matter of the suit. Accordingly, I answer issue No.5 in negative.
22. ISSUE No.6: It is contended by defendant No.7 that court fee paid by plaintiffs is insufficient. In fact, this issue is not seriously pressed in to service, during the course of trial. This issue is not heard at the earliest point of time. Plaintiffs has valued the suit for the purpose of court fee on valuing the subject matter at Rs.30 lakhs and a sum of Rs. 73,565/- has been paid under Section 24 (b) of Karnataka Court Fees and Suits Valuation Act, 1958. In my view the court fee paid by plaintiffs is sufficient and defendant No.7 failed to prove this issue. Accordingly, I answer issue No.6 in negative. 27
O.S.No. 3280 / 2014
23. ISSUE No.7: In view of the above finding on other issues, now, the question for consideration is whether plaintiffs are entitled for the relief of declaration and permanent injunction as prayed. There is a positive finding to the effect that plaintiffs are owners of the suit schedule property as per Ex.P2. They are in possession of the suit schedule property till today. There is clear denial of their title by the defendants. Under these circumstances, a ground is made out to grant the relief of declaration and permanent injunction.
24. Secondly, it is the question for consideration that what about subsequent sale deeds. While giving findings on the above issues, it is held that subsequent sale deeds dated 12.10.2001, 10.03.2004, 26.11.2009 and mortgage deed dated 03.09.2013 are void and not binding on the plaintiffs. The Hon'ble High Court of Karnataka in BINNY MILL LABOUR WELFARE HOUSE BUILDING CO-
OPERATIVE SOCIETY LIMITED VS. D.R. MRUTHUNJAYA ARADHYA, REPORTED IN 2009 (2) KAR.L.J. 291 at para 27 held as under.
28
O.S.No. 3280 / 2014 "A valid agreement is one, which is enforceable by law as a contract, by the parties to the agreement. A void agreement is one, which does not exist in the eye of law, and therefore fails to receive any legal recognition or sanction. In legal parlance it is a nullity or non est. it is not a contract at all. It would be automatically null and void without more ado. It existence or continuation has no value, as you cannot continue a nullity. If a statute specifically provides that a contract contrary to the provisions of the statute would be void, it is no contract in the eye of law, it is void absolute initio, and the said agreement is unenforceable in law. In between these two extreme positions, lies the voidable agreement. IN law it exists and also recognized. It is a contract. It can also be enforced. But because of some defect in its origin, at the option of the party to the agreement, it is liable to be cancelled or set aside. In other words, a voidable agreement is one which is void or valid at the election of one of the parties. However, it is valid, till it is declared void by a Competent Court of law, in a manner known to law. Therefore, it is not a nullity or non est. It is valid and good unless avoided. It requires to be set aside."
25. If an act is void or ultravires, it is enough for the court to declare it so and it collapses automatically. It need not be set aside. The aggrieved can simply seek a declaration that it is void and not binding upon him. In a suit for declaratory suit the cause of action for a declaratory suit based on the denial of title, does not arise until the plaintiff has knowledge of the denial. In 29 O.S.No. 3280 / 2014 the case on hand, according to the plaintiffs their title was denied in the second week of March 2014. That being the position, the suit is within the period of limitation. In view of the above legal position, all the subsequent sale deeds become non est. It is just and proper to declare them as void documents. Accordingly, it is held that plaintiffs are entitled for the relief of declaration and permanent injunction.
26. In the result, I proceed to pass the following.
ORDER (1) Suit is decreed, with costs.
(2) It is declared that plaintiffs are absolute owners of suit schedule property.
(3) All subsequent Sale Deeds dated 12.10.2001, 10.03.2004, 26.11.2009, Mortgage Deed dated 03.09.2013, respect of the schedule property are declared as void ab initio and not binding on the plaintiffs.
(4) Defendants, their agents are hereby restrained by permanent injunction from interfering with the possession of the suit schedule property, by plaintiffs.
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O.S.No. 3280 / 2014
(5) Draw decree accordingly.
(Dictated to the Judgment Writer Online, corrected and then pronounced by me in open court, this the 30th DAY OF NOVEMBER 2016) (VENKATARAMAN BHAT) XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38) BANGALORE ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
PW1 Sri. S. Jagadish Documents marked on behalf of the plaintiff/s:
Ex.P1 - General Power of Attorney Ex.P2 - Sale Deed Ex.P3 - Encumbrance certificate Ex.P4to9 - Tax paid receipts Ex.P10to12 - Photographs Ex.P13 - Compact Disk Ex.P14 - Cash Receipt
Ex.P15to17 - Certified copy of sale deeds Ex.P18 - Mortgage deed Ex.P19- Photograph Ex.P20- First Information Report List of witnesses examined on behalf of the Defendant/s:
DW1 Sri. K. Basavan Gowda Documents marked on behalf of the Defendant/s:
NIL XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38), BANGALORE.31
O.S.No. 3280 / 2014 Judgment passed and pronounced in the open court (vide separate judgment). The operation portion of the order reads thus -
ORDER (1) Suit is decreed, with costs.
(2) It is declared that plaintiffs are absolute owners of suit schedule property.
(3) All subsequent Sale Deeds dated 12.10.2001, 10.03.2004, 26.11.2009, Mortgage Deed dated 03.09.2013, respect of the schedule property are declared as void ab initio and not binding on the plaintiffs.
(4) Defendants, their agents are hereby restrained by permanent injunction from interfering with the possession of the suit schedule property, by plaintiffs.
(5) Draw decree accordingly.
XXXVII ACCJ, (CCH-38)