Bangalore District Court
Kumari Sowmya vs Smt.Shanthi Vijayadev on 8 December, 2020
1
O.S.No. 177/ 2010
IN THE COURT OF THE XXIV ADDL.CITY CIVIL AND
SESSIONS JUDGE BANGALORE CITY (CCH-6)
Dated this the 8th day of December, 2020
Present: Smt. Meenaxi M. Bani,
B.Com., LLB(Spl),
XXIVAddl. City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT NO. 177/ 2010
Plaintiff : Kumari Sowmya,
D/o late V.R.Ashok Kumar,
Aged about 25 years,
Residing at Chatra,
Behind Government School, Bidadi,
Ramanagara
(By N.V.Vasanth, Advocate)
-Vs-
Defendants : 1. Smt.Shanthi Vijayadev,
W/o Vijayadev,
Aged about 60 years,
R/at No.104, Sun City
Pure Magic, Marthalli,
Ring Road, Bangalore-17
2. Smt. Kavitha,
W/o Umesh Babu,
R/at No.19, Boweelane,
'D' Street, Ashok Nagara,
Bangalore-25.
3. Smt. Prabala Ramakrishna,
W/o Ramakrishna,
2
O.S.No. 177/ 2010
Since dead by her LR's
3(a): Sri. Ramakrishna,
Father's name not known
Aged about 60 years,
3(b) : Sri. Mohan,
S/o Sri. Ramakrishna,
Aged about 31 years,
3(c) : Sri. Sanjay,
S/o Sri.Ramakrishna,
Aged about 29 years,
All are resident of No.19,
'Boweelane', 'D' Street,
Ashok Nagar, Bangalore-25.
4. Smt.R.Neelavathi,
W/o Jayaram,
R/at No.115, 7th cross,
Kuvempu Nagara,
Chennapattana Town,
Ramanagara Dist.
5. Sri. Jaganatha,
S/o late Ramaswamy,
Since dead by his Lrs
5(1) : Smt. Suchithra,
W/o late Jaganatha,
Aged abouot 40 years,
5(2) : Master Akshay,
S/o late Jaganatha,
Aged about 9 years,
R/at No.19, Boweelane
'D' Street, Ashok Nagara,
Bangalore-25.
3
O.S.No. 177/ 2010
6. Smt. Seetha,
W/o late V.R.Ashok Kumar,
Aged about 58 years,
R/at Chatra, Behind Govt. School,
Bidadi, Ramanagara District.
(By Sri. S.S. for D.1,
Sri.C.V.A for D.2, 4,
Sri.K.C.S.R for D.3- Advocates)
Date of Institution of the suit : 28.08.2009
Nature of the suit : Partition & Declaration
Date of commencement of
recording of evidence : 06.02.2012
Date on which Judgment was
pronounced : 08.12.2020
Duration : Day/s Month/s Year/s
10 03 11
4
O.S.No. 177/ 2010
JUDGMENT
Plaintiff has filed this suit for declaration declaring that, plaintiff is entitled for 1/6th share in the suit schedule property and to declare that Gift Deed dated. 27.06.2003 and subsequent Rectification Deed dated. 15.12.2003 executed by the grand father of plaintiff late Ramaswamy in favour of 1st defendant is not binding upon the plaintiff and to direct the defendants to effect partition in the suit schedule property etc.
2. Material facts leading to this case are as follows:-
Plaintiff is the grand daugther of one Ramaswamy who had three sons and three daugthers. Plaintiff is the daugther of 2 nd son by name late Ashok Kumar, defendants Nos.1, 3 and 4 are daugthers of late Ramaswamy, 2nd defendant is daugther-in-law and wife of late Umesh Babu i.e., 1st son of late Ramaswamy, 6th defendant is 3rd son of late Ramaswamy. The grandfather of plaintiff acquired the suit schedule property during his life time, he died intestate on 05.06.2004. After his death, the father of plaintiff and defendants Nos.1, 2 and 5 were residing in the suit schedule property as a 5 O.S.No. 177/ 2010 successor to the joint family along with their respective families.
Plaintiff's father and his family members were occupied in the ground floor consists of one bed room, hall, kitchen, bathroom and toilet in the suit schedule property. Defendants Nos.3 and 4 are married daugthers and they are living along with their respective families at Yelahanka and Channapatna, there is no partition among the co- paceners for their metes and bounds.
3. After death of plaintiff's father, plaintiff and her mother could not bear the humiliation, left the suit schedule property after leasing out the portion of the property to the tenement and started living at Bidadi for their convenience. Plaintiff and her mother requested the defendants to effect partition by metes and bounds, but defendants instead of divide and allot the legitimate share colluded each other and tried to postpone one or other pretext. Defendant deprive the plaintiff's legitimate share in the suit schedule property, in which plaintiff's mother let out the premises to their tenement, started harassing them illegally and in their absence put the lock in order to evict them. The said fact brought to the notice of the plaintiff's mother by her tenement, the plaintiff's mother went to the premises for 6 O.S.No. 177/ 2010 enquiry by then defendants Nos.2 to 5 made galata by using filthy language and assaulted her. Plaintiff's mother approached the jurisdictional police and filed a complaint against defendants Nos.3 and 4 for their illegal act. Police shows their inability as the dispute is Civil in nature and advised to approach the appropriate Court of law for their re-dressal. Because of harassment and illegal activities of defendants Nos.2 to 5, the tenant who was in occupation of plaintiff's portion in the suit schedule property vacated the premises and hand over the key to plaintiff's mother. Defendants Nos.3 and 4 taking advantage of absence of plaintiff and her mother in the premises making hectic efforts to alter the premises from the inside by removing the wall which bifurcate the premises in order to let out the same to the 3rd party. Plaintiff reliably learnt that the defendants Nos.1 to 5 colluded each other and in order to deprive the legitimate right in the joint family property and to deceive the plaintiff out of her legitimate share, defendants trying to let out the portion of the joint family property and thereby creating third party interest in the suit schedule property. Plaintiff and her mother made demand of definite legitimate share by orally immediate after the death of plaintiff's father 7 O.S.No. 177/ 2010 in several time with defendants, instead of divide the suit schedule property are colluding each other and trying to let out portion of joint family property. After filing written statement of defendants, plaintiff got amended plaint by inserting para No.9(a).
4. It is averred that, 1st defendant taken stand that during life time of father of defendant late Ramaswamy had executed registered Gift Deed in favour of defendant No.1 on 27.06.2008 and the said Gift Deed was rectified by executing the Registered Rectification Deed dated. 15.12.2003 etc., are false and said document are concocted copy, got up are not binding upon the plaintiff. The alleged Gift Deed purported to be executed when said Ramaswamy aged about 83 years and he was not in sound state of mind due to his long ailment and old age, taking advantage of the same the 1st defendant induced him to execute the alleged Gift Deed, as such at that point of time, he was also under the custody of the defendant No.1. Defendant No.1 in order to knock out the entire suit schedule property for wrongful gain with malicious intention, the said alleged gift deed was secured in her favour by defeating the legitimate right of the other co-sharers. 8
O.S.No. 177/ 2010
5. Cause of action arose when mother of plaintiff made oral demand for having a definite legitimate share in the suit schedule property after the death of plaintiff's father and subsequently on all other dates. Hence, plaintiff prays to decree the suit.
6. After service of suit summons, defendant No.1 appeared before the court through his counsel and filed written statement and other defendants filed separate written statements by supporting plaintiff. During pendency of suit, defendants Nos.3 and 5 died and their legal heirs are brought on record as defendants Nos.3(a) to (c) and defendants Nos.5(1) and 5(b).
7. Defendant No.1 filed written statement denying the case of plaintiff in to-to. However the relationship is admitted. It is contended that, late Ramaswamy father of 1st defendant is constructed the ground floor out of his retirement benefit and started living therein along with his family. Defendant No.1 being the eldest daugther, she supported to her father immediately after completion of her education by doing private job prior to her marriage she had travel business. Out of her income she was looking to the entire family of said 9 O.S.No. 177/ 2010 Ramaswamy, apart from that her husband being the Commercial Manager in KSTDC, he had supported toe the family of Ramaswamy as the brother of defendant No.1 was away from the family. The 1 st and 2nd floors of the suit schedule property was constructed by defendant No.1 out of her own income in support of her husband as said Ramaswamy had no source of income after his retirement.
8. It is denied that, after death of father of 1st defendant, the father of plaintiff and defendants Nos.1, 2 and 5 were residing in the suit schedule property jointly along with their respective families and father of plaintiff and his family occupied in the ground floor and defendants Nos.3 and 4 were married daugther residing in their respective houses and there is no partition etc.
9. Defendant specifically taken contention in the written statement that, during the life time her father Ramaswamy executed Gift Deed in favour of defendant No.1 on 27.06.2008 for the portion of the suit schedule property consists of ground, first, second and third floors as described in the suit schedule property. Later on Gift Deed was rectified by executing the registered Rectification Deed dated. 10
O.S.No. 177/ 2010 15.12.2003 by deleting the third floor as mentioned in the principal document and stick on to only ground, first and second floor as described in the Rectification Deed. Said Ramaswamy had mortgaged the suit schedule property to one Smt.Uma, w/o g.A.Shankar Murthy for a sum of Rs.40,000/- towards the marriage expenses of 2 nd defendant, the mortgage was later released by the 1 st defendant after paying mortgage amount with interest. Apart from that, defendant No.1 was managing the entire family of Ramaswamy as well as her parents, old age illness, considering immune service of 1st defendant, said late Ramaswamy of his own will and volition executed the registered Gift Deed in favour of defendant No.1. By virtue of the gift deed, 1st defendant became the absolute owner as per the portion of the suit schedule property as described in the schedule of the Gift Deed. Under the circumstances, the whole suit schedule property cannot be partitioned for its metes and bounds and the other avernments are denied. Hence, defendants prays to dismiss the suit.
10. Defendants Nos.3(a) to 3(c) filed separate written statement contending that, late Ramaswamy, the grandfather of 11 O.S.No. 177/ 2010 plaintiff acquired the suit schedule property during his life time through joint family funds and suit schedule property was the ancestral and joint family property of late Ramaswamy. After his death, plaintiff and defendants are the legal heirs and successors of deceased Ramaswamy and have succeeded to the same as legal heirs and they are in joint possession and enjoyment of the suit schedule property. There is no partition effected in the suit schedule property by metes and bounds and defendants have got right, interest in the suit schedule property. Hence, they are entitled for 1/6th share in the suit schedule property. These defendants denied the fact of alleged execution of gift deed and rectification deed etc. Hence prays to allot the 1/6th share jointly to these defendants in respect of the suit schedule property by mets and bounds.
11. On the basis of the pleadings, following issues are framed by my learned predecessor:
ISSUES
1. Whether plaintiffs prove that suit property is undivided joint property of the plaintiff and defendants?
2. Whether plaintiff has a share in the suit property?12
O.S.No. 177/ 2010
3. Whether defendants 2, 4 and 5 have a share in the suit property?
4. Whether defendant No.1 proves that the father of defendant No.1 has validly executed registered gift deed on 27.06.2008 for a portion of suit property?
5. Whether defendant No.1 further proves that the father had also executed registered rectification deed dated. 15.12.2003?
6. What decree or order?
12. In order to prove plaintiff's case, plaintiff herself examined as Pw.1 and got marked 6 documents at Exs.P.1 to P.6. On the other hand, defendant No.1 herself examined as Dw.1 and defendant No.4 examined as Dw.2 and got marked 8 documents at Exs.D.1 to 8 (Exs.D.1 and 2 got confronted through Pw.2 during cross-examination).
13. Heard arguments and perused the records.
14. My findings on the above Issues are:
Issue No.1: In the Affirmative Issue No.2: In the Affirmative Issue No.3: In the Affirmative Issue No.4: In the Negative Issue No.5: In the Negative 13 O.S.No. 177/ 2010 Issue No.6: As per final order for the following:
REAS O NS Issue Nos.1, 2, 4 and 5 : Since these issues are inter-linked with each other, hence in order to avoid repetition of facts, I would like to deal with these issues together for common discussion.
15. On going through the pleadings, it reveals that relationship between parties is admitted fact. Late Ramaswamy had three sons and three daugthers, namely late Umesh Babu, late Ashok Kumar and Jaganatha i.e., defendant No.5 and 3 daugthers namely Smt.Shanthi Vijaydev/ defendant No.1, Smt.Prabala Ramakrishna/ defendant No.3 and R.Neelavathi/ defendant No.4 . Plaintiff is daugther and defendant No.6 is wife of deceased Ashok Kumar who is 2nd son of late Ramaswamy. Defendant No.2 is wife of 1st son namely Umesh Babu. During the pendency of suit, daugther defendant No.3 and son Jaganatha defendant No.5 died and their legal heirs were brought on record.
16. It is an undisputed fact that, suit schedule property acquired by late Ramaswamy under registered sale deed dt. 14
O.S.No. 177/ 2010 26.08.1969. In this regard certified copy of sale deed is produced by defendant No.1 and it is marked at Ex.D.6. The suit schedule property consisting of ground, first, second and third floors measuring east to west 42 feet and north to south 21 feet situated at Boweelane, 'D' Street, Ashok Nagara, Bangalore. Late Ramaswamy died intestate on 05.06.2004.
17. Plaintiff has sought relief of declaration declaring that, she has got 1/6th share in the suit schedule property and directing the defendants to effect partition by meets and bounds and later, prayed declaration declaring that, alleged gift deed and Rectification deed are not binding on the plaintiff's share. Defendant No.1 is contesting party, resisted plaintiff's case on the other hand. In the written statement, defendant No.1 has taken specific contention that, during the life time of her father i.e., late Ramaswamy he had executed registered Gift Deed in favour of defendant No.1 on 27.06.2008 for the portion of suit schedule property consisting of ground, first, second and third floors and later said Gift Deed was rectified by executing registered Rectification Deed dt. 15.12.2003 by deleting the third floor as 15 O.S.No. 177/ 2010 mentioned in the principal document and stick on to only ground, first and second floors. After executing the Gift Deed, said Ramaswamy mortgaged the suit schedule property to one Smt.G.S.Uma, w/o G.A.Shanker Murthy for a sum of Rs.40,000/- towards the marriage expenses of 2nd defendant and later the mortgage was released by 1 st defendant after paying mortgage amount with interest and first defendant look after the entire family of Ramaswamy as well as her parents old age illness, considering immune service of the 1st defendant, said late Ramaswamy of his own will and volition executed the registered Gift Deed and as per said Gift Deed, she became the absolute owner of portion of suit schedule property. Plaintiff and defendants Nos.2 to 6 have no share in the first, second and 3 rd floors is denied contending that, only ground floor is available for partition, wherein in the said property she has got 1/6 th share etc. Thereafter plaintiff got amended the plaint by adding para No.9(a) by denying the execution of alleged Gift Deed, Rectification Deed by Ramaswamy in favour of defendant No.1 contending that same are concocted, got up and sham document and they are no binding upon the plaintiff. At the time of alleged Gift Deed, Ramaswamy was aged about 83 years and 16 O.S.No. 177/ 2010 he was not in sound state of mind. Taking advantage of the same, 1 st defendant induced him to execute the alleged Gift Deed, as such at that point of time he was under the custody of 1 st defendant. In order to knock out the entire suit schedule property for wrongful gain with malicious intention, defendant No.1 got created sham document.
18. Ex.D.1 is xerox copy of Gift deed dt. 27.06.2003 confronted during cross-examination of Dw.2. Ex.D.7 is original Gift Deed dated. 27.06.2003 and certified copy of Gift Deed dt.27.06.2003 marked at Ex.D.8. These three documents are one and the same documents.
19. In order to prove plaintiff's case, plaintiff herself examine as Pw.1. She stated that after death of her grandfather Ramaswamy, his father and defendants Nos.1, 2, 5 were residing jointly in the suit schedule property as a successors along with their respective families. During life time of her father she residing in one of the portion of ground floor. Defendants Nos.3 and 4 were married daugthers residing in their respective families. After death of her father, her mother could not bear the humiliation, she left the suit schedule property after 17 O.S.No. 177/ 2010 leasing out the portion to the tenement and started living separately. Her mother once again requested defendant No.1 to effect partition and allot to give their legitimate share, but they are not heed to her request etc. It is also stated that, due to the harassment and illegal activities of defendants Nos.2 to 5 the tenant who was in occupation of their portion in the suit schedule property vacated the said premises and hand over the key to them. Taking advantage of their absence defendant No.3 in collusion with defendants Nos.4 and 5 snaked in to the premises and let out the same to the different tenement etc. Pw.1 stated that Gift Deed executed by late Ramaswamy is created and sham document etc.
20. Defendant No.4 is one of the daugther examined as Dw.2 and she has stated that, plaintiff and defendants are the undivided Hindu Joint family members and after the death of Ramaswamy and Radhamma, the plaintiff and defendants are the legal heirs successors and succeed their estate etc. During the life time of Ramaswamy, father of plaintiff V.R.Ashok Kumar and husband of defendant No.5(1) Jaganatha were given the financial support to their father 18 O.S.No. 177/ 2010 Ramaswamy and put up a house construction over the suit schedule property and also maintaining the family and she has got 1/6th share etc. Her father acquired old house and thereafter subsequently three portions building constructed etc. She is also claimed share in the suit schedule property.
21. To corroborate her case, plaintiff has produced genealogical tree, death certificate of father of plaintiff Ashok Kumar, endorsement issued by Ashok Nagar police, tax paid receipts and Katha extract at Exs.P.1 to 6. The Katha Extract dt. 23.12.2009 reveals that suit schedule property stands in the name of grand father of plaintiff Ramaswamy, Pw.1 and Pw.2 have lengthily cross- examined by advocate for defendant No.1.
22. On the contrary, defendant No.1 examined as Dw.1 and she has stated in her examination-in-chief about execution of Gift Deed dt. 27.06.2003 by her father late Ramaswamy in respect of first and second floors and followed by rectification deed dated. 15.12.2003 and her father had every right to execute the gift deed in 19 O.S.No. 177/ 2010 respect of suit schedule property as it was his self acquired property. The children of said Ramaswamy have no right, title, interest and possession of the suit schedule property during his life time. By virtue of the gift deed she has become the owner in possession and enjoyment of the suit schedule property. Since her father residing in the ground floor portion of the suit schedule property, he did not intend to execute any deed transferring the rights in respect of ground floor portion of the suit schedule property. As such only the ground floor portion of the suit schedule property is available for partition which comes to 1/3rd of the entire property. The 1/3rd undivided share in the entire property has to be divided between the children of Ramaswamy equally and she has got 1/6th share in the said 1/3rd undivided share in the ground floor portion of the suit schedule property and prays to dismiss the suit in respect of 2/3rd share in the entire property.
23. Defendant No.1 has produced Gift Deed at Exs.D.1, 7 and 8. Ex.D.1 Xerox copy of Gift Deed confronted during cross- examination of Pw.1. Exs.D.1, 7 and 8 are one and the same 20 O.S.No. 177/ 2010 documents. Ex.D.2 is xerox copy of Rectification Deed dt. 15.12.2003 and got confronted during cross-examination of Dw.2 and sale deed dated. 06.06.1933, certified copy of sale deed dt. 16.10.1952, certified copy of sale deed dated. 18.08.1965 and certified copy of sale deed dated. 16.08.1968 and same are marked at Exs.D.3 to 6. Defendants also produced gift deed dated. 27,06.2003 at Ex.D.7 and Ex.D.8 is certified copy of Gift Deed.
24. It is the specific case of defendant No.1 is that, suit schedule property is self acquired property of her father late Ramaswamy. During his life time, he executed Gift Deed in her favour in respect of 1st and 2nd floor portions and also in the said property, plaintiff and other defendants have no right, title, interest and possession whatsoever over the suit schedule property and only ground floor is available for partition etc. In evidence of Pw.1 and Dw.2 have specifically deposed in their evidence contending that, said documents are sham and concocted documents and they are not binding on them.
21
O.S.No. 177/ 2010
25. I have gone through documents produced by defendant No.1. It is noticed that, signature of Ramaswamy differs in each page in Exs.D.1, 7, 8 and Rectification Deed at Ex.D.2. Further in Ex.D.1, on page No.2 though there is name of two witnesses is written as identified, but there is no signature on page No.5 of name of attesting witnesses and their signatures is not found. Ex.D.7 in original Gift Deed name of witnesses written in black ink, subsequently gift deeds at Exs.D.1, 2 and 7 signature of late Ramaswamy differs from each page. Further in gift deed, there is a recital on page No.2 that "all the children of Donars i.e., Ramaswamy except Smt.Shanthi Vijayadev are separately and happily leaving in their respective houses and whereas Smt.Shanthi Vijayadev is presently residing me and looking after my day to day needs, demands, my daily bread and also all my medical expenses out of his funds".
26. On perusal of cross-examination of Dw.1, it is noticed that, Dw.1 stated that her father was working as Supervisor in H.A.L and he retired from service in the year 1970 and he purchased the property in suit out of retirement benefit and further up to 1978, they were residing in the old house. After retirement of her father by 22 O.S.No. 177/ 2010 demolishing old structure, he constructed ground floor from the amount received by him after retirement and her marriage performed in the year 1971. After her marriage, she continued residing in the said house and witness volunteers that, her husband also started residing with them. At the time of marriage, she has working in Travel Agency. She denied that suit schedule property was property of her grandfather Venkataswamy. Prior to purchase of said property from Guruswamy, herself, her father, her grandfather and other family members were residing in the said property jointly. She admitted that at the time of her marriage, her husband was working as a Teacher in private school at Gubbi.
27. In the written statement of defendant No.1, defendants specifically taken contention that, she supporter her father by doing private job prior to her marriage and even after her marriage she had travel business and out of said income, she was looking after Ramaswamy and her husband being the Manger in KSTDC, he had also supported to the family of Ramaswamy, as the brother of 1 st defendant away from the family. The first and second floors of the suit schedule property constructed by 1st defendant out of her own income 23 O.S.No. 177/ 2010 in support of her husband as Ramaswamy had no sources of income after his retirement. But in the cross-examination, Dw.1 stated that, her father Ramaswamy constructed 1st floor from retirement benefits. To prove the, defendant No.1 constructed 1st and 2nd floors are concerned, absolutely no any materials available on record.
28. Further in cross-examination of Dw.1, she has stated that at the time of construction of house, her father was working. But denied that her brother also given financial assistance of construction. It is further stated by Dw.1 that, at the time of construction of building her sisters were not married and her parents used to reside in portion of ground floor and had given other portion on rent. Prior to construction of house, herself, her husband and children were residing in the said premise and she started residing in the suit schedule property in the year 1975 etc. It is admitted that, ground floor was occupied by her parents, sisters and brothers and that, first floor was occupied by her and there was one more portion on ground floor which was in occupation of tenant etc which appears to be false. To show that she got released the mortgage deed which were mortgaged 24 O.S.No. 177/ 2010 as contended in the written statement. Absolutely, no documents produced by the defendant No1.
29. At page No.16 of cross-examination of Dw.1 she admitted that, at present, Suchithra is residing in 2 nd floor of suit schedule property and at the time of his death her brother late Jagannath was residing in the 2 nd floor. It is denied that her father was suffering from various illness etc. About the Gift Deed is concerned, she admitted on last page that attesting witnesses were not signed on Ex.D.1 and signatures of Ramaswamy on each pages differs etc. In Ex.D.1 there is recital about ground floor to 3rd floors. Pw.1 unable to say what what rectified as per Ex.D.2 Rectification Deed and also unable to say name of witnesses. Defendant No.1 not examined attesting witnesses at Ex.D.1. Further, defendant No.1 not got changed the Khatha in her name as per gift deed by filing application.
30. It is noticed in Ex.P.7 Original Gift Deed, in the last page the names of witnesses written subsequently in blue ink. Plaintiff and other defendants are seriously disputed the said documents as sham documents.
25
O.S.No. 177/ 2010
31. Advocate for plaintiff vehemently argued that, gift deed and rectification deeds are created documents. Provision of Section 122 of T.P.Act is not followed and Gift Deed is not attested by any attesting witnesses. Defendant No.1 not got change the Katha in her name as per alleged gift deed. Defendant No.1 has not produced documents to show that she constructed 1st and 3rd floor. The alleged documents are sham documents etc. In support of plaintiff's case, advocate for plaintiff relied the decision in case of Govindbhai Chhotabhai Patel and others v/s Patel Ramanbhai Mathurbhai reported in 2019 Supreme Court 1065, wherein it held that:
"(B) Indian Evidence Act, 1872 - Section 68- Proving a gift deed -
Attesting witness - Gift Deed registered and fulfilling requirements of Section 123, Transfer of Property Act, 1882- No denial of execution of gift deed - Trial Court not returning any finding as to whether gift deed was forged- high Court holding deed to be proved - No error".
32. On the other hand, advocate for defendant No.2 argued that, except Will, other documents need not be attested and proved as per provision of Section 68 of Indian Evidence Act. Further the donor has not challenged the execution of Gift Deed. Further there is 26 O.S.No. 177/ 2010 no particular format about signatures of attesting witnesses on last page etc.
33. In this regard, the learned counsel for defendant No.1 relied the following decisions:-
* Decision of Hon'ble Apex Court in the case of Brij Raj Singh (dead) by Lrs and others v/s Sewak Ram & Another reported in AIR 1999 SC 2203, wherein it is held that:
"Section 3 of the Transfer of property Act specifically states that no particular form need be followed in the matter of attestation. It can be at the first, as in this case or at last page".
* In the case of Jamila Begum (dead) their Lrs v/s Shami Mohd. (dead) their Lrs and another reported in 2019(2) SCC 727, wherein it is held that, ..."merely because the parties are related to each other or merely because the executant was old or of weak character, no presumption of undue influence can arise. Court must scrutinize the pleadings to find out that such plea has been made out before examining whether undue influence was exercised or not".
27
O.S.No. 177/ 2010 * In the case of Surendra Kumar v/s Nathulal reported in (AIR) 2001 SC 2040, wherein it is held that:
"registered deed of gift can be received in evidence without examining one of the attestors if the person who has executed the deed of gift has not specifically denied its execution".
I have carefully gone through the above cited decisions.
34. The decisions relied by the plaintiff counsel is attributed to the case in hand, since in this case plaintiff and defendants nos.2 to 5 have denied about the alleged Gift deed and Rectification Deed said to have executed by Ramaswamy in favour of defendant No.1 contending that, they are forged and concocted one and also sham documents etc.
35. As I have already discussed earlier, in this case no attesting witnesses have signed in the original Gift Deed on last page. Thereafter in blue ink their names are written. Further, defendant No.1 unable to say the name of attesting witnesses and even she has not chosen to examine witnesses. Further, defendant No.1 in her evidence 28 O.S.No. 177/ 2010 though stated that, after her studies she got employed and after marriage, she continued to support her father as he had already spent his earnings and had no source of earnings and out of her earnings, she constructed 1st and 2nd floors and her father executed Gift Deed dt. 27.06.2003 in respect of first and second floors and followed by rectification deed dt. 15.12.2003 and her father got every right to execute the Will etc. She spent her earnings for 1 st and 2nd floors construction of building is only bare contention, without any proof since defendant No.1 has not chosen to adduce any cogent and documentary evidence in this regard. It is admitted that, suit property acquired by late Ramaswamy and he constructed house after demolishing the old structure out of his retirement benefit. Said Ramaswamy had three sons and three daugthers. Defendant No.1 is first daugther. The said alleged Gift deed executed on 27.06.2003 and its recital that, all children of Ramaswamy are separately and happily living in their respective houses and defendant No.1 residing with her etc. But it has come in the evidence that, after marriage husband of defendant No.1 working at Gubbi and she was residing along with husband. At page No.4 in her evidence, stated that after marriage 29 O.S.No. 177/ 2010 herself and he husband used to reside in old house etc. Further she stated that relationship between herself and her husband was cordial and her husband also supported for construction of 1st and 2nd floors, but absolutely no documents produced in this case. Further she stated that, when she is in custody of original document. During life time of her father, she did not try to got change the Katha in her name as per the Gift Deed.
36. Further she has stated that, prior to construction, herself and her husband and her children were residing in a rental premises and she cannot say that her parents occupied the suit schedule property etc. As per Exs.D.1, 7 and 8 (a), (b), and (c) suit schedule properties i.e., common passage along with ground, first and 3 rd floors said to have gifted. As per Rectification deed, schedule 'A' property i.e., new No.19 and old No.24 consisting of ground and first floor and then rectified.
37. In examination-in-chief Dw.1 stated that, only ground floor portion of the suit schedule property is available for partition etc which appears contrary. Dw.1 unable to say what is rectified as per 30 O.S.No. 177/ 2010 Rectification Deed etc. All these circumstances clearly goes to show that, alleged gift deed forged and sham document and defendant No.1 unable to prove the burden casted upon her. It is further to be noted that, defendants Nos.2 to 5 supporting the plaintiff's case and they have also specifically denied the alleged gift deed and rectification deed. Since plaintiff being the grand daugther of late Ramaswamy, after death of her father she succeeded to the estate of suit schedule property. Hence plaintiff along with her mother i.e., defendant No.6 is entitled for share in the suit schedule property. Therefore, considering the materials available on record, I am of the opinion that issue Nos.1 and 2 are to be answered in the Affirmative and issue Nos.4 and 5 are to be answered in the Negative. Accordingly same are answered.
Issue No.3:-
38. Defendants Nos. 3 to 5 have also claimed their share in the suit schedule property. It is admitted fact that, plaintiff, defendants Nos.1 to 5 are successors of late Ramaswamy and after his death, his heirs inherited of the suit schedule property. While discussing earlier issues, it is observed that defendant No.1 unable to prove that she became the owner of portion of 1st and 2nd floors of suit schedule 31 O.S.No. 177/ 2010 property by virtue of the gift deed and rectification deed etc and suit property is joint family property of plaintiff and defendants Nos.1 to 5. There is no any partition by metes and bounds. Therefore, defendants Nos.2 to 5 are also having share in the suit schedule property along with plaintiff and defendant No.1. Accordingly, I answer this issue in the Affirmative.
Issue No.6:-
39. Plaintiffs sought the relief declaration declaring that she is entitled for 1/6th share in the suit schedule property and directing the defendants to effect partition in the suit schedule property and to declare that, gift deed dt. 27.06.2003 and subsequent rectification deed dt. 15.12.2003 executed by defendant No.1 is not binding upon the share of plaintiff etc.
40. While discussing earlier issues and on considering the oral and documentary evidence on record, I have already opined that plaintiff has proved her case by adducing cogent oral and documentary evidence. Therefore, plaintiff who is grand daughter i.e., daugther of deceased Ashok Kumar who is 2nd son of late Ramaswamy is entitled for the relief sought for and as a result, I proceed to pass the 32 O.S.No. 177/ 2010 following:-
ORDER Suit filed by the plaintiff' is hereby decreed.
It is declared that, plaintiff and defendant No.6 together are entitled for 1/6th share in the suit schedule property. Defendants Nos.1, 2, 3, 4 and 5 are also entitled for 1/6th share each in the suit schedule property respectively.
It is declared that, gift deed dt. 27.06.2003 and subsequent Rectification Deed dt. 15.12.2003 executed by late Ramaswamy in favour of defendant No.1 is not binding upon the plaintiff.
Partition and separate possession of suit schedule property shall be effected by metes and bounds through court Commissioner by allotting plaintiff's 1/6th share.
Draw preliminary decree.
(Dictated to the Judgment Writer transcribed by her, after corrections pronounced by me in Open Court on this the 8th day of December, 2020) (MEENAXI M. BANI) XXIV ADDL.CITY CIVIL & 33 O.S.No. 177/ 2010 SESSION JUDGE, BANGALORE CITY.
ANNE XURE List of witnesses examined for plaintiff:
PW.1 : Kum.Sowmya
List of documents marked for plaintiff:
Ex.P.1 : Family tree
Ex.P.2 : Death certificate of Ashok Kumar
Ex.P.3 : Endorsement issued by police
Exs.P4, 5 : Tax paid receipts
Ex.P.6 : Katha extract
List of witnesses examined for defendants:
Dw.1 : Shanthi Vijaydev
Dw.2 : Smt.R.Neelavathi
List of documents marked for defendants:
Ex.D.1 : Certified copy of Gift Deed
Ex.D.2 : Certified copy of Rectification Deed
Ex.D.3 : C/c of sale deed dt. 6.6.1933
Ex.D.3(a) : Typed copy
Ex.D.4 : C/c of sale deed dt. 16.10.1952
Ex.D.4(a) : Typed copy
Ex.D.5 : C/c of sale deed dt. 18.8.1965
Ex.D.5(a) : Typed copy
Ex.D.6 : C/c of sale deed dt. 16.8.1969
Ex.D.6(a) : Typed copy
Ex.D.7 : Original Gift Deed dt. 27.06.2003
Ex.D.8 : C/c of gift deed dt.27.6.2003
(MEENAXI M. BANI)
XXIV ADDL.CITY CIVIL &
SESSIONS JUDGE,
BENGALURU CITY.
34
O.S.No. 177/ 2010