Bangalore District Court
Syed Ahmed S/O Late Syed Peer vs Syed Amir Pasha S/O Late Syed Peer on 22 March, 2022
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Smt. Suvarna K. Mirji, B.Com., LL.B.(Spl).,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
OS No.25166/2018
Dated this the 22nd day of March 2022
Plaintiff:- Syed Ahmed S/o late Syed Peer,
Aged about 74 years,
R/at. No.304, A.K. Colony,
Sagayapuram, Bengaluru 05.
(Rep by Sri. Riyyah & Sum Advocate)
V/S
Defendant:- Syed Amir Pasha S/o late Syed Peer,
Aged about 65 years,
R/at. No.587, 1st Cross,
2nd Main Road, RKH Nagar,
Bengaluru 77.
(Defendant Sri.M.G.S., Advocate)
Date of Institution of the suit 01/02/2018
Nature of the (Suit or pro-note, suit
Declaration and Permanent
for declaration and possession, suit
for injunction, etc.)
Injunction
Date of the commencement of recording 18/07/2018
of the Evidence.
2
Judgment OS.No.25166/2018
Date on which the Judgment was
pronounced 22/03/2022
Total duration Year/s Month/s Day/s
04 01 21
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
MAYOHALL UNIT: BENGALURU.
:JUDGMENT:
The plaintiff filed suit against the defendants for Declaration & Permanent Injunction.
2. The brief facts of plaint averments is as under:
The plaintiff submits that he purchased the suit schedule item No.1 under registered sale deed on 09/02/1970. The plaintiff submits that he is absolute owner of ¾ share in item No.2 of suit schedule property. He purchased said property under registered deed of sale on 03/02/2011 jointly with his late wife Zareen Taj.
He owned ½ share and his wife owned other ½ share. His wife
3
Judgment OS.No.25166/2018
passed away on 01/12/2013 leaving no issues and hence as per Sahriath law one half of her 1/2th share in item No.1 of the suit schedule property was inherited by him thereby he is owner of ¾ share in item No.2 of the suit schedule property.
:SUIT SCHEDULE PROPERTY ITEM NO.1:
All that residential property comprising of Ground Floor, First Floor, Second Floor and Third Floor bearing BBMP No.304 situated at A.K. Colony, Sagayapuram, Bangalore, Old PID No.90-48-304, New PID No.061-WO107-75. Measuring East to West 18 feet, 0 inches, North to South : 48 feet, 0 inches, bounded by East: Private Property, West: Private Property, North: Private Property/Road, South: Road.
:SUIT SCHEDULE PROPERTY ITEM NO.2:
All that piece and parcel of immovable residential property bearing No.55, Khata No.734, Layout formed in converted Survey No.98/1 Vide order No.B.DIS.ALN.SR9SA) 69/2001-02, dated 4 Judgment OS.No.25166/2018 20/08/1991 converted by Deputy Commissioner, Bangalore District, Bangalore East Taluk, Bangalore now within the limits of BBMP, measuring East to West 40+41 feet 5 inches/2, North to South 48 + 60 feet 0 inches/2 bounded by East: Road, West: Private Property No.86, North: Road, South: Private Property No.56.
3. The plaintiff further submits that after death of his wife Zareen Taj, he fell into great sorrow and depression as he had co- habited with her for several years, and he had loved her immensely. He had no issues and his entire affection and attention was solely directed upon said deceased wife and she also reciprocated and matched her husband's love and affection. The defendant is only his living brother and after death of Zareen Taj assessing his loneliness, depression and melancholy started frequently visiting him and showed great concern, love and affection for him. This new behaviour of defendant influenced him, who reciprocated love and affection upon defendant. The 5 Judgment OS.No.25166/2018 defendant also started running errands for him and looked after his every need, however great or small. However he later realized defendant's show of love and affection upon him was motivated to capture the property belonging to him wholly for himself and immediately. At the time of death of his wife he was residing in his house which was portion of item No.1 and let out remaining portion to tenants and was directly collecting rents from them. In respect of item No.2, this property was wholly let out to various tenants and he had entrusted management thereof to defendant to collect rents. The defendant prevailed upon him to shift to his house shortly after the death of his wife, and kept him in his house. He locked up his house at Item No.1 of suit schedule property and shifted to defendant's house. He had also developed back pain and was unable to manage living alone.
4. The plaintiff further submits that he was lonely and had no one to talk to or look after his personal needs, and so decided to get married. He informed defendant of his decision to get married 6 Judgment OS.No.25166/2018 and the defendant was not in favour of the same, because the new wife may spoil his chances of inheritance and snatch away all the property. The defendant has cautioned him saying that second wife may turn out to be nasty and troublesome and may make his life miserable and also snatch away his property. However in spite of convincing him against remarrying, he was firm in his decision to get married. He told defendant that he would make WILL bequeathing suit schedule properties to him in the event of his death. He also told the defendant that his to be new wife would be given their house, in item No.1 where they would be residing and she should be given sum of Rs.20,000/- month out of the rents collected till her life time. He had announced making WILL also to assuage immediate apprehension of defendant of losing right of inheritance to suit schedule properties and he did not want his younger brother, the defendant to be unhappy. He while deciding to make WILL was not under any apprehension of death and was always confident that he would live and then later 7 Judgment OS.No.25166/2018 on sell the property and distribute the money to all concerned. He entrusted the work of making WILL upon defendant also told the defendant that he should mention that he had full right to cancel WILL anytime he wanted. He was also unaware of intricacy of law regarding WILL or Gift and having reposed trust in his brother, asked him to get prepared WILL accordingly. The defendant assured him that he would follow the instructions faithfully and would instruct document writer accordingly. That on 02/02/2015 defendant having made necessary arrangements took him to the Sub-Registrars office for execution of WILLS. He had no apprehension that any fraud was taking place, he reposed complete trust in his brother/defendant. He only enquired document writer who was doing the work whether he had made a mention in the WILL that he could cancel WILL anytime he wanted. The document writer said that cannot be mentioned in the document and he would prepare such cancellation document the next day as there was no time left and that cancellation 8 Judgment OS.No.25166/2018 agreement would be simultaneously executed when second WILL was being registered. He was unaware that single WILL could cover all the properties and there was no need to execute separate WILL for each property. He had complete trust and love for his younger brother/defendant and never suspected anything life fraud being played. Thus on 02/02/2015 he executed unknowingly Gift Deed while under the impression that it was WILL.
5. The plaintiff further submits that in respect of item No 2 of the suit schedule property the defendant had same executed and registered next day i.e., on 03/02/2015. Both these deed were executed by him under the impression that they were WILLS, and that is what he was told by defendant and document writer. A cancellation deed termed Memorandum of Understanding was also prepared and got executed by both him and defendant. He was completely influenced by defendant, who had also apparently influenced the document writer to tell him that documents were 9 Judgment OS.No.25166/2018 WILSS. Under both these gift deeds which he thought were WILLS, he had not handed over formal or actual possession of both item of suit schedule property to defendant. That item No.1 comprised of residential tenements, of which he was residing in one tenement in the ground floor and had let out other tenements to various tenants. He was directly collecting rents from all tenants of item No.1 of suit schedule property and had kept his residence locked after he had shifted to defendant house prior to his second marriage. In respect of item No.2 of the suit schedule property, since the defendant was acting as his rent collector and was collecting rental on his behalf and handing over the same to him, he understood that the same arrangements would continue. He had formally not handed over possession of item No.2 of the suit schedule property to defendant as he had not made gift deed of same to defendant. While executing the documents thought he was executing WILL that would give the defendant control over his properties after his death, there was no intention or mensrea, 10 Judgment OS.No.25166/2018 on his part to gift the properties to the defendant and so, there was no declaration of Gift, no acceptance of Gift, nor handing over of possession of the properties pursuant to execution of the deeds. That none of the requirements of valid gift under Shariath such as intention to gift, declaration of gift, acceptance of gift, handing over of possession, actual or constructive, receipt of possession actual or constructive, were complied with to make valid gift. That even title deeds of suit schedule properties were not handed over to the defendant. Even Gift Deeds dated: 02/02/2015 and 03/02/2015 were not handed over to defendant. In sum and substance none of requirement of valid gift under Shariath were complied with to effect transfer suit schedule properties to the defendant by way of gift. That all the execution of the documents, were under the influence of the defendant as the plaintiff had reposed complete trust in him and did not expect the defendant to deceive him and also he was utterly uneducated man and more so has not knowledge of implications of documents executed by 11 Judgment OS.No.25166/2018 him, except understanding that the documents were WILL with him having the authority to cancel at any time and that in view of Memo of Understanding dated: 03/02/2015, could always be cancelled and revoked if plaintiff felt the need to do so. That while executing the suit documents he was told by defendant that he had the authority to right to cancel the documents any time he felt the need to do so. He did not get read the gift deeds due to trust imposed upon defendant but enquired of contents of cancellation agreement and was satisfied that it contained his right to collect the rents and to cancel the Wills. Thus the plaintiff was made to execute gift deed saying that they were WILLS. It ought to be mentioned that there was no need of any sort for him to give off his properties and be reduced property less. His mind was influenced that second marriage with unfamiliar woman would spell trouble to his family.
6. The plaintiff further submits there was no need for him to gift away the suit properties to defendant as there was not 12 Judgment OS.No.25166/2018 immediate apprehension in him that he was going to die. Moreover he has suffered depression after the death of his beloved wife and was looked after by the defendant who made a drama of his love and affection and concern for him. The defendant has played fraud upon him by misleading him as to the nature of the deeds executed by misleading him to sign gift deeds instead of WILLS. That all the documents of title remained with him and he also paid taxes for both items of suit schedule properties on 30/09/2015 for both properties as absolute owner of both properties. The defendant also continued to hand over the rentals of item No.2 of suit schedule properties for about year from the date of execution of the documents, however started making reduced and irregular payments citing various reasons that the tenants have not paid up or that some expenses towards maintenance had been borne. Around August/September 2016 when he went to pay taxes for the years 2016-17 he found out the khata of both items was surreptitiously got changed by defendant 13 Judgment OS.No.25166/2018 from his name to the defendant without his knowledge. He has not signed any khatha transfer forms to be filed before the BBMP for transfer of Khata. Thereafter when he confronted defendant as to why defendant got khatha transferred to his name, defendant got rude and told to him that he better keep quite or that he would stop paying the rentals or he would just throw out him from the suit properties saying that they now belong to him. Thus defendant has cheated him getting his properties transferred to his name fraudulently and depriving him of the ownership of his own properties, he has had several plans to enjoy the suit schedule properties. He intended to gradually distribute his properties to all his heirs including the defendant and his deceased sister's children and also do acts of charity as he had no children of his own. In the circumstances pleaded above he seek declaration that the two gift deeds to executed are null and void having been obtained by fraud and the suit schedule properties have not been gifted by him to the defendant and that even otherwise if the gift 14 Judgment OS.No.25166/2018 deeds though not admitted, even if taken to have been executed, if so facto fail to transfer property since the requirement of a gift under Shariath are no complied with. Further he also seeks decree of Gift Deeds dated: 02/02/2015 and 03/022/2015 have been fraudently obtained. Hence this suit that gift deed dated:
02/02/2015 and 03/02/2015 are null and void and that suit schedule properties are his absolute properties. He is apprehensive that if the Gift Deeds dated: 02/02/2015 and 03/02/2015 are allowed to remain without cancellation they will cause injury to him and his heirs and hence it is imperative that they be ordered to be canceled in the records of the concerned Sub-Registrar. Hence he also seeks decree for cancellation of Gift Deeds dated 02/02/2015 with suitable orders to the concerned Sub-Registrar to record their cancellation. The plaintiff further submit apart from the facts that fraud has been exercised by the defendant in getting transfer of the suit schedule properties in his name and hence he is entitle to get Gift Deeds canceled on the 15 Judgment OS.No.25166/2018 ground of fraud, Memorandum of Understanding dated 03/02/2015 also gives him an total and unqualified right to have both the Gift Deeds canceled on the basis thereof. He is in legal possession of both items of the suit schedule properties. As for as item No.1 is concerned he is in actual physical occupation of one tenement in the ground floor of the same and he has let out the remaining portions and is collecting the rents. In respect of the item No.2 of the suit schedule property though defendant was collecting the rents he was doing so in the capacity of manager or rent collector, and that he has withdrawn authority of agency of defendant to collect rents. That in portion of item No.1 he is residing and has let out the other portions to various tenants and thus is in actual and constructive possession of the same. The defendant is sly person and may make efforts to even take possession of item No.1 of schedule property by tricking of coercing the tenants to shift over to him. Also it is mentioned in the Gift Deed dated: 02/02/2015 that he has handed over 16 Judgment OS.No.25166/2018 possession of the same to the defendant, which is not true. Hence it is imperative that his possession to item No.1 of suit schedule properties be safe guarded from interference by the defendant by way of permanent injunction. The defendant is collecting rentals from tenants of Item No.2 of the suit schedule properties handing over rentals to him. The defendant is in constructive possession of the item No.2 of suit schedule properties. Further the tenants inducted by him have vacated and new tenants inducted in their place. Hence is imperative that possession of item No.2 of suit schedule properties be restored to him. As a matter of abundant precaution he also seeks possession of item No.1 of suit schedule property in the event of the defendant claiming to the contrary.
7. The plaintiff further submits that the cause of action for the suit arose on 02/02/2015 and 03/02/2015 being the date of execution of Registered Gift Deed and around August/September 2016 when the plaintiff discovered that the defendants had got the katha of the suit schedule properties unauthorizedly transferred in 17 Judgment OS.No.25166/2018 his name. The plaintiff prays to decree the suit declaring that the Gift Deeds dated 02/02/2015 and 03/02/2015 are null and void and not validly transfer the suit schedule property in favour of defendants. The plaintiff also prays for decree of cancellation of the Registered Gift Deeds dated 02/02/2015 and 03/02/2015 by directing the defendant to cancel the same by way of instrument of cancellation and in the event of refusal, execution of cancellation of deeds through the Court agency and direction may be given to Sub Registrar to make necessary entry of the Gift Deeds stands cancelled. The plaintiff further prays for decree of Permanent Injunction restraining the defendants from dispossessing or otherwise interfering with the peaceful possession and enjoyment of the plaintiff in item No.1 of the suit schedule property. The plaintiff further prays for decree directing the defendant to hand over the possession of the suit schedule item No.1 & 2 property to him and also prays for enquiry relating to the mesne profits in respect of the wrongful possession of the 18 Judgment OS.No.25166/2018 defendant of item No.2 of schedule property from the date of suit to date of possession.
8. The defendant filed written statement submitting that Plaintiff has studied up to SSLC. Plaintiff initially was working as a Craft Instrutor/Teacher in Jogupalya Corporation High School up to the year 1964. Thereafter the plaintiff obtained job to Mico Factory in the department of packing and continued to work till his retirement. The plaintiff married to one Zareen Taj who was none other than the daughter of plaintiffs maternal aunt. The plaintiff and said Zaareen Taj were living happily. The said Zareen Taj apart from being wife of plaintiff was also otherwise closely related to the plaintiff and defendant. The said Zareen Taj was very loving, caring and had always tried to keep the family and kinship ties intact. The plaintiff and said Zareen Taj did not have children out of their marriage. Unfortunately the said Zareen Taj passed away on 01/12/2013. He and plaintiff were sharing good bond even during the life time of said Zareen Taaj. After 19 Judgment OS.No.25166/2018 demise of said Zareen Taj, defendant and his family members took care of the plaintiff. Even during life time of Zareen Taj the defendant and his family members were providing all emotional and other support to the plaintiff and the said Zareen Taj be it medical or crisis or any other family issues. Thus plaintiff had shared extreme bonding with the defendant. The plaintiff and defendant are the only surviving children of one late Syed Peer. Thus the plaintiff having expressed his love, affection, reciprocation and acknowledgement of the care and concern exhibited by the defendant and his family members have declared the he would convey the schedule property in favour of defendant. It was the had earned desire of the plaintiff that he shall convey item No.1 and 2 of the schedule property to the defendant before he could get married again. The reason for this desire of the plaintiff is not far to seek.
9. The defendant further submits that the plaintiff had expressed that he having decided to convey the property during 20 Judgment OS.No.25166/2018 his life time in favour of defendant did not want to take any chance of his mind being influenced otherwise by anyone whomsoever including the prospective wife. It was under these sound, clear and executed of Gift dated: 02/02/2015 and 03/02/2015 absolutely conveying the schedule property in his favour of before his second marriage with his present wife Zaha Ara with sound mind of disposition without there being any coercion, undue influence, misrepresentation or fraud of any nature whatsoever thereby the plaintiff conveyed absolute right, title and interest in respect of item No.1 and 2 of the schedule property in favour of defendant in terms of provisions of transfer of property in favour of defendant in terms of provisions of transfer of property act by executing the aforesaid two registered deeds of conveyance. The witnesses to the aforesaid documents namely Syed Muneer and Syed Mubeen Pasha who are children of nephew of plaintiff and defendant, the question of plaintiff 21 Judgment OS.No.25166/2018 being under undue influence of the defendant is therefore false and misleading.
10. The defendant further submits that the allegation of playing fraud on the plaintiff is also mischievous and unjustified. Pursuant to execution of the aforesaid deeds of gift the katha in respect of both the properties have been transferred in the name of the defendant. He in exercise of his ownership of schedule property entering into lease agreements. He has been collecting rents from aforesaid property had indeed agreed to pay he monthly rentals receivable from the aforesaid property for the use and benefit and maintenance of the plaintiff till his life time after deducting expenses and payments towards maintenance and property tax. The plaintiff has been receiving rents from defendant accruing from item No.1 and 2 of the schedule property. The plaintiff had requested the defendant that despite execution of Gift Deed in respect of items No.1 and 2 of property he would reside till his life time in items No.1 and 2 of schedule 22 Judgment OS.No.25166/2018 property. The plaintiff requested defendant that despite execution of Gift Deeds in respect of items No.1 and 2 of the property he would reside till his life time in items No.1 and 2 of schedule property. In fact plaintiff is also receiving the rentals from item No1 of property and utilizing for his benefit. The plaintiff had requested defendant that the refundable security deposit in respect of items No.1 and 2 of the schedule property received from tenants to be paid him for the purpose of religious and charitable act which he is intending to contribute to an Arab Madarasa at Hunsuru. Accordingly and in compliance to requests of plaintiffs, he though had executed lease agreements in favour of aforesaid tenants and having received sum of Rs.11,00,000/- the same has been paid to the plaintiff to meet and comply his desire and intention of donating the same to Arab Madarasa at Hunasur. The plaintiff has thus completely aware of the fact that he has deceived himself the right, title and interest rightly conveyed in favour of defendant for the reasons and circumstances narrated 23 Judgment OS.No.25166/2018 above. The plaintiff is also completely aware of the fact that he is receiving the rentals from item no.1 of the suit schedule property and also aware of the fact that he has received sum of Rs.11,00,000/- being interest free security deposit to be paid. That while receiving the aforesaid sum of Rs.11,00,000/-, the plaintiff had represented that he had certain amounts deposited in Ananath Co-operative Bank since the said bank has been superseded and his account having been frozen, on release of said deposit he would make the payment to be refunded to the tenants. However plaintiff has not complied with said promise an assurance till date. The plaintiff is therefore liable to pay sum of Rs.11,00,000/- to him to be refunded to aforesaid tenants. The plaintiff having conveyed property in favour of defendant under the facts and circumstances narrated above, has come up with the aforesaid suit by making brazenly false, mischievous unjustified allegations tarnishing his image and reputation. He has all along considered and treated plaintiff with all emotional and loving 24 Judgment OS.No.25166/2018 concern which the defendant were expected would be made with such allegations by plaintiff. The present suit is also been filed on the instigation of some of person having vested interest.
11. The defendant further submits that averments made in para No.2 of the plaint that plaintiff is the owner of item No.1 of the suit schedule property having purchased the said property under a registered deed of sale is true and correct. The averments made in para No.3 of plaint that plaintiff is owner of ¾ the share in item No.2 of suit schedule property having purchased the same through deed of sale dated:03/02/2011 jointly with his wife Zareen Taj and thus the plaintiff and his wife equally having half share is true and correct. The further averments that plaintiffs wife passed away on 01.12.2013 leaving no issues and as per Sheriath law one half of her share in item No.1 of the suit schedule property was inherited by plaintiff, her husband and making the plaintiff owner of ¾ th share in item No.2 of suit schedule property are true and correct. The averments made in 25 Judgment OS.No.25166/2018 para No.4 of the plaint with regard to plaintiff earlier married to aforesaid Zareen Taj who passed away on 01/12/2013 are true and correct. The averments made in para No.5 of plaint that defendant is the only living brother of the plaintiff is true and correct. The allegation that after the death of Zareen Taj the defendant frequently visiting plaintiff and showing great concern, love and affection is false. The further allegation that plaintiff realizing the defendant's love and affection on plaintiff was motivated to capture property of plaintiff is baseless. In fact after the demise of Zareen Taj the plaintiff came to the house of defendant and settled their itself as there was no one to look after him. The averments and allegations made in para No.6 of the plaint that plaintiff was residing in his house which was portion of item No.1 of the suit schedule property and had let out the remaining portion to tenants and was directly collecting rents from them and that in respect of item No.2 was let out to various tenants and he had entrusted the management to the defendant to 26 Judgment OS.No.25166/2018 collect rents and that defendant prevailed upon the plaintiff to shift to his house shortly after the death of his wife, and kept the plaintiff in his house and shortly after the death of his wife, and kept the plaintiff in his house and that the plaintiff locked up his house at item No.1 of the suit schedule property and shifted to defendant's house and plaintiff had also developed back pain and was unable to manage living alone are false.
12. The defendant further submits that the averments and allegations made in para No.7 of plaint that in spite of residing with defendant, the plaintiff was lonely and had no one to talk to or look after his personal needs and so decided to get married and that he informed the defendant of his decision to get married and the defendant was not in favour of same, because the new wife may spoil his chances of inheritance and snatch away all the property are denied as false. The further allegations that defendant cautioning the plaintiff saying that the second may turn out to be nasty and troublesome any may make his life 27 Judgment OS.No.25166/2018 miserable and also snatch away the plaintiff's property are all baseless. The further allegations that he told the defendant that he would make WILL bequeathing the suit schedule property to him in the event of his death and that plaintiff also told him that his to be new wife would be given their house in item No1 where they would be residing and she should be given a sum of Rs.20,000/-per month out of the rents collected till her life time are all false. The further allegations that he had announced making WILL also to assuage the immediate apprehension of the defendant of losing right of inheritance to suit schedule property and he did not want his younger brother to be unhappy are all denied as false and plaintiff while deciding to make the will was not under any apprehension of death, and was confident that he would live and then later on sell the property and distribute the money to all concerned. The plaintiff entrusted work of making the WILL upon him also told him that he should mention that the plaintiff had full right to cancel the WILL anytime he wanted and 28 Judgment OS.No.25166/2018 that plaintiff was also unaware of the intricacy of law regarding Will or Gift and having reposed trust in his brother asked him to get prepared WILL are all false. The allegations made in para No.9 of plaint that he would follow the instructions faithfully and would instruct document writer accordingly and that defendant took copies of document of title from the plaintiff to go ahead with the preparation of the deeds and plaintiff's second marriage was fixed on 08/02/2015 are false. The averments and allegations made in paras No.10 & 11 of the plaint to the effect that on 02/02/2015 the defendant having made necessary arrangements, took the plaintiff to the Sub-Registrar office for execution of WILLS and that plaintiff had no apprehension that any fraud was taking place, he reposed complete trust in his brother and that he enquired document writer who was doing work whether he had made mention in the WILL that he could cancel the WILL anytime he wanted are all false. The plaintiff himself executed deeds of gift in his favour.
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13. The defendant further submits that allegations made in para No.12 of plaint that both the deeds were executed just few days before got married and that said documents were executed on 2nd and 3rd of February and he got married on 8/02/2015 and plaintiff on date of his marriage he shifted back to his previous house along with his wife are all created story except execution of Gift Deeds on 2nd and 3rd February 2015 and para No.13, 15 and 16 of plaint that plaintiff though that those documents are Will and not Gifts and further allegations that he has not handed over the possession of both item are all false. The further allegations that item No.1 comprised of residential tenements for which the plaintiff was residing in one tenement in the ground floor and had let out the other tenements to various tenants and that plaintiff was directly collecting rents from all the tenants of item No.1 of the suit schedule property and had kept his residence locked after he had shifted to the defendant house prior to his second marriage are all created story only to file the above false 30 Judgment OS.No.25166/2018 suit. The para No.14 of the plaint that in respect of item No.2 of suit schedule property since the defendant was acting as plaintiffs rent collector and was collecting rental on behalf of the plaintiff and handing over the same to plaintiff, the plaintiff understood that the same arrangement would continue and that plaintiff had formally not handed over possession of item No.2 of suit schedule property to the defendant as he had not made gift of the same to the defendant are all false. The allegations made in para No.17 of plaint that all execution of documents were under influence of defendant as plaintiff had reposed complete trust in him and did not expect defendant to deceive him and also he was utterly dependent upon him are all false. The further allegations that plaintiff is basically an uneducated man and more so has no knowledge of the implications of documents were WILL with him having authority to cancel at any time and that in view of Memo of Understanding dated: 03/02/2015 could always be 31 Judgment OS.No.25166/2018 cancelled are all baseless. The plaintiff is an educated person having studied up to SSLC.
14. The defendant further submits that allegations made in paras No.18 and 19 of plaint that while executing the suit documents he was told by the defendant that he had the authority to right to cancel the documents any time he left the need to do so, and that the plaintiff did not get read the Gift Deeds due to trust imposed upon the defendant but enquired of the contents of the cancellation agreement and was satisfied that it contained his right to collect the rents and to cancel the Wills and that plaintiff was made to executed gift deed saying that they were Wills and that it ought to be mentioned that there was no need or any sort for the plaintiff to give of his properties and be reduced property less and plaintiff mind was influenced that a second marriage with an unfamiliar woman would spell trouble to the family of plaintiff and that defendant as there was not immediate apprehension that he was going to die and had suffered 32 Judgment OS.No.25166/2018 depression after the death of his beloved wife are all false. The averments made in para No.20 of plaint to the effect that all documents are with plaintiff and he paid taxes for both items of suit schedule property on 30/09/2015 for both properties and that defendant continued to hand over the rentals of the item No.2 of suit schedule property for about year from the date of execution of documents, however subsequently started making reduced and irregular payments are all false. The averments made in para No.21 of plaint to the effect that during August/September 2016 when plaintiff went to pay the taxes for the years 2016-17 he found out the Katha of both items was surreptitiously got changed by defendant from his name to defendant without his knowledge and that plaintiff has not signed any Katha transfer forms to be filed before BBMP for transfer of katha are all false. The averments and allegations made in para No.22 of plaint that defendant has cheated the plaintiff by getting plaintiff properties transferred to his name fraudulently and depriving him of the 33 Judgment OS.No.25166/2018 ownership of his own properties and plaintiff had several plans to enjoy the suit schedule property and that plaintiff intended to gradually distribute his properties to all his heirs including the defendant and his deceased sister's children and also do acts of charity as he had no children of his own are all created story only to file the above suit.
15. The defendant further submits that averments made in para No.23 to 25 and para No.26 of plaint that he is in legal possession of the both items of the suit schedule property and as item No.1 concerned he is in actual physical occupation of one tenement in the ground floor of the same and he has let out of remaining portions and is collecting the rents he was doing so in the capacity of manager or rent collector and that the has withdrawn the authority of the agency of the defendant to collect rents are all false and baseless. The allegations made in para No. 27 of plaint that item No.1 the plaintiff is residing in a portion thereof and has left out the other portions to various tenants and thus is 34 Judgment OS.No.25166/2018 in actual and constructive possession of the same and that defendant is a sly person and may make efforts to even take possession of item No.1 of schedule property by tricking or coercing the tenants to shift over to him and that in the Gift deed dated: 02/02/2015 he has handed over possession of the same to the defendant which is not true are all false. The averments and allegation made in para No.28 of plaint that defendant is collecting rentals from the tenants of the item No.2 of the suit schedule property and has since the past few months stopped handing over the rentals to the plaintiff and that defendant is in constructive possession of item No.2 of the suit schedule property and that tenants inducted by the plaintiff have vacated and new tenants inducted in their place and seeking possession of item No.1 of the suit schedule property are all baseless. He is rightly collecting the rents from item No.2 as lawful owner. There is no cause of action to file the suit and alleged one in para No.29 is false and plaintiff not paid proper 35 Judgment OS.No.25166/2018 court fee on the plaint. The defendant prays to dismiss the suit with exemplary costs.
16. On the basis of above pleadings following Issues are framed:-
:ISSUES:
(1) Whether the plaintiff proves that the deed of gift dt.02.02.2015 and 03.02.2015 are null and void and do not validly transfer the suit schedule property in favour of the defendant? (2) Whether the plaintiff proves that defendant is to be directed to cancel registered deeds of gift dt.02.02.2015 and 03.02.2015?
(3) Whether the plaintiff proves that he was in lawful possession and enjoyment of the suit schedule property as on the date of suit? (4) Whether the plaintiff proves that the alleged interference of defendant over the suit schedule property?36
Judgment OS.No.25166/2018 (5) Whether the plaintiff proves that he is entitled to the relief of mesne profits?
(6) Whether the plaintiff is entitled to the relief's as sought for in the plaint?
(7) What order or decree?
17. The plaintiff examined as PW.1 and marked documents ExP1 to ExP6. The defendant examined as DW.1 and marked ExD1 to ExD13 .
18. The plaintiff counsel argued and filed memo with citation. The defendant counsel argued. Perused the records.
19. My findings 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 Affirmative Issue No.5 : In Negative Issue No.6 : Partly in Affirmative & Partly in Negative 37 Judgment OS.No.25166/2018 Issue No.7 : See final order for following:
:REASONS:
20. Issues No.1 to 6:
The plaintiff Syed Ahmed filed his affidavit in lieu of examination in chief as PW.1 and deposed the evidence that he is absolute owner of suit schedule item No.1 & he purchased said properties on 09/02/1970 and she is absolute owner of ¾ share in item No.2 of the suit schedule property. He purchased said property vide registered deed of sale dated: 03/02/2011 jointly with his late wife Zareen Taj. He owned ½ share and his wife owned other ½ share. His wife passed away on 01/12/2013 leaving no issues and hence as per Sahriath law, one half of her half share in item No.2 of the suit schedule property was inherited by him, hence he is owner of ¾ share in the item No.2 of suit schedule property. The other one half of one half share or one- quarter share is inherited by his wife's other heirs. He was earlier married to one Zareen Taj, who passed away on 01/12/2013, after 38 Judgment OS.No.25166/2018 his wife's death, fell into great sorrow and depression as he had co-habited with her for several years, and he had loved her immensely. He had no issues and his entire affection and attention was solely directed upon the said deceased wife and she also reciprocated and matched her husband's love and affection. The defendant is his only living brother and after death of Zareen Taj assessing his loneliness, depression and melancholy started frequently visiting him and showed great concern, love and affection for him. This new behaviour of defendant influenced him who reciprocated love and affection upon defendant. The defendant also started running errands for him and looked after his every need, however great or small. He later realized defendant's show of love and affection upon him was motivated to capture the property wholly for him. At the time of death of his wife, he was residing in his house which was a portion of item No.1 of the suit schedule property and had let out the remaining portion to tenants and was directly collecting rents from them. In 39 Judgment OS.No.25166/2018 respect of item no.2, this property was wholly let out to various tenants and he had entrusted the management thereof to the defendant, to collect rents as it was far away be located close to defendants house. This was even before the date of the alleged gift. The defendant used to regularly remit him the rent collected. The defendant prevailed upon him to shift to his house shortly after the death of his wife, and kept him in his house. He locked up his house at Item No.1 of suit schedule property and shifted to defendant's house. He had also developed back pain and was unable to manage living alone.
21. The PW.1 further deposed evidence that he was lonely and had no one to talk to or look after his personal needs, and so decided to get married. He informed the defendant of his decision to get married and the defendant was not in favour of the same, because the new wife may spoil his chances of inheritance and snatch away all the property. The defendant had cautioned the plaintiff, saying that the second wife may turn out to be nasty and 40 Judgment OS.No.25166/2018 troublesome and may make his life miserable and also snatch away his property. He told the defendant that he would make WILL bequeathing suit schedule properties to him in the event of his death. He also told the defendant that his to be new wife would be given their house, in item No.1 where they would be residing and she should be given sum of Rs.20,000/- per month out of rents collected till her life time. He had announced making WILL also to assuage immediate apprehension of defendant of losing right of inheritance to the suit schedule properties and he did not want his younger brother/defendant to be unhappy. He while deciding to make WILL was not under any apprehension of death, and was always confident that he would live and then later on sell property and distribute money to all concerned. He entrusted work of making WILL upon defendant also told the defendant that he should mention that he had full right to cancel the WILL anytime he wanted. He was also unaware of the intricacy of law regarding WILL or Gift and having reposed trust 41 Judgment OS.No.25166/2018 in his brother, asked him to get prepared the WILL accordingly. The defendant assured him that he would follow the instructions faithfully and would instruct document writer accordingly. The defendant took copies of document of title from his, to go ahead with the preparation of deeds. His second marriage was fixed on 08/02/2015. That on 02/02/2015 defendant having made necessary arrangements took him to the Sub-Registrars office for execution of WILLS. He had no apprehension that any fraud was taking place, he reposed complete trust in his brother/defendant. He only enquired document writer who was doing the work whether he had made a mention in the WILL that he could cancel the WILL anytime he wanted. The document writer said that cannot be mentioned in the document and he would prepare such cancellation document the next day as there was no time left and that cancellation agreement would be simultaneously executed when the second WILL was being registered. He was unaware that a single WILL could cover all the properties and there was no 42 Judgment OS.No.25166/2018 need to execute separate WILL for each property. He had complete trust and love for his younger brother, the defendant and never suspected anything life fraud being played. Thus on 02/02/2015 he executed unknowingly Gift Deed dated:
02/02/2015 while under the impression that it was WILL.
22. The PW.1 further deposed evidence that in respect of item No 2 of suit schedule property, defendant had same executed and registered the next day i.e., 03/02/2015. Both these deed were executed by him under impression that they were WILLS and that is what he was told by the defendant and the document writer. A cancellation Deed termed Memorandum of Understanding was also prepared and got executed by him and defendant. He was completely influenced by the defendant, who had also apparently influenced document writer to tell him that the documents were WILLS. Under both these gift deeds which he thought were WILLS, he had not handed over formal or actual possession of both item of suit schedule property to the defendant. That item 43 Judgment OS.No.25166/2018 No.1 comprised of residential tenements, of which he was residing in one tenement in the ground floor and had let out the other tenements to various tenants. He was directly collecting rents from all tenants of item No.1 of suit schedule property and kept his residence locked after he had shifted to defendant's house prior to his second marriage. In respect of item No.2 of suit schedule property since defendant was acting as his rent collector and was collecting rental on behalf of him and handing over the same to him, he understood that same arrangements would continue. He had formally not handed over possession of the item No. 1& 2 the suit schedule property, to the defendant, as he had not made gift deed of same to defendant. While executing documents thought he was executing WILL that would give the defendant control over his properties after his death, there was no intention or mensrea, on the part of the plaintiff to gift the properties to the defendant and so, there was no declaration of Gift, no acceptance of Gift, nor handing over of possession of the 44 Judgment OS.No.25166/2018 properties pursuant to execution of the deeds. That none of the requirements of valid gift under Shariath such as intention to gift, declaration of gift, acceptance of gift, handing over of possession, actual or constructive, receipt of possession actual or constructive were complied with to make valid gift. That even title deeds of suit schedule properties were not handed over to defendant. Even Gift Deeds dated: 02/02/2015 and 03/02/2015 were not handed over to defendant. In sum and substance none of requirement of valid Gift under Shariath were complied with to effect transfer suit schedule properties to the defendant by way of Gift.
23. The PW.1 further deposed evidence that all execution of documents were under influence of defendant as he had reposed complete trust in him and did not expect defendant to deceive him and also he was utterly uneducated man and more so has not knowledge of implications of documents executed by him, except understanding that documents were WILL with him having the authority to cancel at any time and that in view of Memo of 45 Judgment OS.No.25166/2018 Understanding dated: 03/02/2015 could always be cancelled and revoked if he so felt the need to do so. That while executing suit documents he was told by defendant that he had the authority to right to cancel the documents any time he felt the need to do so. He did not get read the gift deeds due to trust imposed upon defendant but enquired of the contents of the cancellation agreement and was satisfied that it contained his right to collect the rents and to cancel the WILLS. Thus he was made to execute the Gift Deed saying that they were WILLS. That there was no need of any sort for him to give off his properties and be reduced property less. His mind was influenced that second marriage with unfamiliar woman would spell trouble to his family. There was no need for him to gift away suit properties to defendant as there was no immediate apprehension in him that he was going to die. Moreover he has suffered depression after the death of his beloved wife and was looked after by the defendant who made drama of his love and affection and concern for him. The 46 Judgment OS.No.25166/2018 defendant has played fraud upon him by misleading him as to the nature of deeds executed by misleading him to sign gift deeds instead of WILLS. That all the documents of title remained with him and he also paid taxes for both items of the suit schedule properties on 30/09/2015 for both properties as absolute owner of both properties. The defendant also continued to hand over the rentals of the Item No.2 of the suit schedule properties for about year from date of execution of the documents, however started making reduced and irregular payments citing various reasons that the tenants have not paid up or that some expenses towards maintenance had been borne. Around August/September 2016 when he went to pay the taxes for the years 2016-17 he found out the khata of both items was surreptitiously got changed by the defendant from his name to the defendants without his knowledge. He has not signed any khatha transfer forms to be filed before the BBMP for transfer of Khata. Thereafter when he confronted the defendant as to why the defendant gotkhatha 47 Judgment OS.No.25166/2018 transferred to his name, defendant got rude and told him that he better keep quite or that he would stop paying the rentals or he would just throw out him from suit properties saying that they now belong to him. Thus defendant has cheated him getting his properties transferred to his name fraudulently and depriving him of ownership of his own properties, he has had several plans to enjoy the suit schedule properties. He intended to gradually distribute his properties to all his heirs including the defendant and his deceased sister's children and also do acts of charity as he had no children of his own. In the circumstances pleaded above he seek declaration by this court that the two gift deeds to executed are null and void having been obtained by fraud and the suit schedule properties have not been gifted by him to the defendant and that even otherwise if the gift deeds though not admitted, even if taken to have been executed, if so facto fail to transfer property since the requirement of gift under the Shariath are no complied with. Further he also seeks decree of deed of gift 48 Judgment OS.No.25166/2018 dated: 02/02/2015 and 03/02/2015 have been fraudulently obtained are null and void and that the suit schedule property are his absolute properties. Hence he is apprehensive that if gift deed dated: 02/02/2015 and 03/02/2015 are allowed to remain without cancellation they will cause injury to him and his heirs and hence it is imperative that they be ordered to be cancelled in the records of concerned Sub-Registrar. Hence he also seeks decree of cancellation of Gift Deeds dated: 02/02/2015 and 03/02/2015. That fraud has been exercised by the defendant in getting transfer of the suit schedule properties in his name and hence he is entitle to get the Gift Deeds canceled on the ground of fraud, Memorandum of Understanding dated 03/02/2015 also gives him an total and unqualified right to have both the Gift Deeds canceled on the basis thereof. He is in legal possession of the both items of the suit schedule properties. As for as item No.1 is concerned he is in actual physical occupation of one tenement in 49 Judgment OS.No.25166/2018 the ground floor of the same and he has let out the remaining portions and is collecting the rents.
24. The PW.1 further deposed evidence that in respect of the item No.2 of the suit schedule property though the defendant was collecting the rents he was doing so in the capacity of manager or rent collector, and that he has withdrawn the authority of the agency of the defendant to collect rents. The item No.1 the plaintiff is residing in a portion thereof and has let out the other portions to various tenants and thus is in actual and constructive possession of the same. The defendant is a sly person and may make efforts to even take possession of item No.1 of the schedule property by tricking of coercing tenants to shift over to him. It is mentioned in the Gift Deed dated : 02/02/2015 that he has handed over possession of the same to the defendant, which is not true. Hence it is imperative that the possession of the plaintiff to item No.1 of suit schedule properties be safe guarded from interference by the defendant by way of permanent injunction. 50
Judgment OS.No.25166/2018 The defendant is collecting rentals from the tenants of the Item No.2 of the suit schedule properties handing over the rentals to him. The defendant is in constructive possession of item No2 of suit schedule properties. Further the tenants inducted by him have vacated and new tenants inducted in their place. Hence it is imperative that possession of item No.2 of suit schedule properties be restored to him. As a matter of abundant precaution he also seeks possession of item No.1 of suit schedule property in the event of the defendant claiming to the contrary. He has not handed over possession of both items of suit schedule properties to the defendant at any point of time either when executing the alleged documents. He has also never transferred the suit schedule properties to defendant at any point of time as there was no intention to transfer ownership of the properties at any point of time. The transfer was only intended to take place upon his death. The say of defendant that he has studied up to SSLC is incorrect. His father passed away when he was eight years old. They were 51 Judgment OS.No.25166/2018 staying at Saligram which is 18 kilo meters from K.R. Nagar. Till his father's death he was sent to an Urdu School where there was not much teaching. After his father passed away, being the eldest of the house, he was sent to a black smith's foundry where he was made to operate the bellows. He was paid eight annas equvalent to today's half rupee for a whole days work. Thereafter they shifted to Bangalore and his mother became a maid servant and put him in the Muslim Orphanage. At the Muslim Orphanage he was not taught any education but he was put in carpentary classes where he gained skilled and then did odd jobs also became an instructor at the Corporation High School and then got a job at MICO. He tried attending evening classes but could not regularly attend due to work and hence never got any standard of education. The say of defendant at Para-10 of the written Statement that he has given his sum of Rs.11,00,000/- being the rent deposits is false. The defendant has no control over item No.1 which is absolutely under his possession. As far as item 52 Judgment OS.No.25166/2018 No.2 is concerned it comprises of eleven tenements mostly occupied by students and paying rentals starting from Rs.4,000/- to presently Rs.6,000/-. They would only pay a rental advance of Rs.15,000/- which the defendant used to handover to his and take back the deposit whenever they vacate to return to them. Even after the date of the alleged Gift Deeds the defendant has given his fresh deposits and also taken away deposits to be refunded to the tenants. Almost all the tenants would come on temporary basis. The PW.1 prays to decree the suit as prayed in plaint. In support of oral evidence PW.1 marked ExP1 to ExP6.
25. The defendant Syed Amir Pasha S/o Late Syed Peer filed his affidavit in lieu of examination as DW.1 and deposed evidence that the plaintiff filed suit against his seeking declaration declaring that Deed of Gift dated 02/02/2015 and 03/02/2015 are null and void and do not validly transfer suit schedule property in his favour and to decree for cancellation of registered Deeds of Gift dated: 02/02/2015 and 03/02/2015 by 53 Judgment OS.No.25166/2018 directing his to cancel the same by way of an instrument of cancellation for permanent injunction and direction directing his to hand over possession of items No.1 and 2 of schedule property and for enquiry into mesne profits. The suit is no maintainable either in law or on facts and same is liable to be dismissed in limine. The plaintiff has studied up to SSLC. The plaintiff initially was working as a Craft Instructor/Teacher in Jogupalya Corporation High School up to the year 2014. Thereafter the plaintiff obtained job at Mico Factory in the department of packing and continued to work till his retirement. The plaintiff married to one Zareen Taj who was none other than daughter of plaintiff's maternal aunt. The plaintiff and said Zareen Taj were living happily. The said Zareen Taj apart from being wife of plaintiff was also otherwise closely related to him and plaintiff. The said Zareen Taj was very loving, caring and had always tried to keep the family and kinship ties intact.
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26. The DW.1 further deposed evidence that the plaintiff and said Zareen Taj did not have children out of their marriage. Unfortunately said Zareen Taj passed away on 01/12/2013. That he and plaintiff were sharing good bond even during the life time of said Zareen Taj. That after death of said Zareen Taj, he and his family members took care of plaintiff. Even during life time of Zareen Taj he and his family members were providing all emotional and other support to plaintiff and said Zareen Taj be it medical or crisis or any other family issues. Thus plaintiff had shared extreme bonding with him. He and plaintiff are the only surviving children of their father late Syed Peer. Thus the plaintiff having expressed his love, affection, reciprocation and acknowledge of care and concern exhibited by him and her family members have declared that he would convey the schedule property in his favour. It was hard earned desire of the plaintiff that he shall convey item No.1 and 2 of the schedule property to his before he could get married again. The reason for this desire 55 Judgment OS.No.25166/2018 of the plaintiff is not far to seek. The plaintiff had expressed that he having decided to convey the property during his life time in his favour did not want to take any chance of his mind being influenced otherwise by anyone whomsoever including the prospective wife. It was under these sound, clear and unambiguous circumstances the plaintiff had executed deeds of Gift dated: 02/02/2015 and 03/02/2015 absolutely conveying the schedule property in favour his prior to his second marriage with his present wife Jaha Ara. With sound mind of disposition without there being any coercion, undue influence, misrepresentation of fraud of any nature whatsoever thereby the plaintiff conveyed absolute right, title and interest in respect of item No.1 and 2 of the schedule property in his favour in terms of provisions of Transfer of Property Act by executing the aforesaid two registered deeds of conveyance. The witnesses to documents Syed Muneer and Syed Mubeen Pasha who are the children of nephew of him and plaintiff. The question of plaintiff being 56 Judgment OS.No.25166/2018 under his undue influence is therefore false and misleading. The allegation of playing fraud on plaintiff is also misconceived, mischievous and unjustified. Pursuance to execution of the aforesaid Deeds of Gift Katha in respect of both the properties have been transferred in his name.
27. The DW.1 further deposed evidence that he has been collecting rents from the tenants. He having become absolute owner of the property had indeed agreed to pay the monthly rentals receivable from the aforesaid property for the use and benefit and maintenance of the plaintiff till his life time after deducting the expenses and payments towards maintenance and property tax. The plaintiff has been receiving rents from accruing from item No.1 and 2 of schedule property. The plaintiff had requested to him that despite execution of Gift Deeds in respect of items No.1 and 2 of property he would reside till his life time in items No.1 and 2 of the schedule property. In fact the plaintiff is also receiving the rentals from item No.1 of the property and 57 Judgment OS.No.25166/2018 utilizing for his benefit. The plaintiff had requested his that the refundable security deposit in respect of Items No.1 and 2 of schedule property received from the tenants to be paid to him for the purpose of religious and charitable act which he intending to contribute to an Arab Madarasa at Hunsur. Accordingly and in compliance to the requests of plaintiff, though the he had executed lease agreements in favour of aforesaid tenants and having received a sum of Rs. 11,00,000/- the same has been paid to the plaintiff to meet and comply his desire and intention of donating the same to Arab Madarasa at Hunasur. The plaintiff is also completely aware of fact that he is receiving the rentals from No.1 of the suit schedule property and also from the rentals of the item No.2 of the property. The plaintiff is also aware of the fact that he has received sum of Rs.11,00,000/- being interest free security deposit to be paid. That while receiving the aforesaid sum of Rs.11,00,000/-, the plaintiff had represented that he has certain amounts deposited in Amanath Cooperative 58 Judgment OS.No.25166/2018 Bank since the said bank has been superseded and his account having been frozen, on release of the said deposit he would make the payment to be refunded to tenants. However plaintiff has not complied with said promise and assurance till date. The plaintiff is therefore liable to pay the aforesaid sum of Rs.11,00,000/- to him to be refunded to the aforesaid tenants. The plaintiff having conveyed narrated above, has come up with aforesaid suit by making brazenly false, mischievous and unjustified allegations tarnishing his image and reputation. He has all along considered and treated the plaintiff with all emotional and loving concern which he never expected would be made with such allegations by the plaintiff. The present suit is also been filed on the instigation of some of the persons having vested interest. The DW.1 prays to dismiss the suit with costs. In support of oral evidence DW.1 marked the documents ExD1 to ExD13.
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28. The plaintiff counsel while arguing relied upon decisions and filed memo with citations and relevant citation referred below.
2015(4) KCCR 3858 (DB), Syed Basheer Malik Vs. Smt. Jameela Begum, Since dead by his L.Rs and others Mohammaden Law: Hiba/Gift-"A hiba or gift is "a transfer of property, made immediately, and without any exchange," by one person to another, and accepted by, or a on behalf of the latter. Every Mahomedan of sound mind and not a minor may dispose of his property by gift. Writing is not essential to the validity of a gift either of movable or of immovable property. It is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift.
Mohammadan Law:Gift- Essentials of-The three essentials of a gift under Mohammedan law are as under: There should be (1) a declaration of gift by the donor (2) an acceptance of the gift, express or implied, 60 Judgment OS.No.25166/2018 by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee. If these conditions are complied with, the gift is complete. It is essential to the validity of a gift that thre should be a delivery of such possession as the subject of the gift is susceptible. Registration of a deed of gift does not cure the want of delivery of possession under Mohammedan Law. There would be gift of immovable property by a husband to the wife or by wife to the husband.
29. The burden is on the plaintiff to prove that Gift Deeds dated 02/02/2015 and 03/02/2015 are null and void and do not validly transfer the suit schedule property to the defendant and same was liable to be cancelled. The burden is on the plaintiff to prove that he is in lawful possession and enjoyment of the suit schedule property and the defendant causing interference to his possession and enjoyment in the suit schedule property. The plaintiff examined as PW.1 as discussed above and in support of oral evidence the PW.1 marked the documents ExP1 to ExP6. The 61 Judgment OS.No.25166/2018 ExP1 is sale deed dated 09/02/1970 executed by M. Nagaswamy S/o Munishamappa in favour of Syed Ahmed S/o Late Peerssab relating to the property site No.32 of Devarajeevanahalli Village, Kasaba Hobli, Bengaluru North Taluk measuring East to West 18 feet and North to South 48 feet bounded by East : Site No.17, West : Remaining of same property, North & South: Road. The ExP2 is registered sale deed dated 03/02/2011 regarding purchase of site No.55, katha No.734 formed in converted Sy.No.98/1 situated at Rachenahalli Village, K.R. Puram Hobli, Bangalore East Taluk, now comes under BBMP Limits, Bengaluru measuring East to West 40+41.5/2 feet, North to South 48+60/2 feet in all measuring 2200 sq ft bounded by East: Road, West:
Site No.86, North: Road, South: Site No.56 i.e., suit schedule item No.2 by plaintiff and his wife Zareen Taj from H. Sreenivasan. The ExP3 is registered Gift Deed dated 02/05/2015 executed by plaintiff in favour of defendant relating to the suit schedule item No.1 bearing BBMP No.304 situated at 62 Judgment OS.No.25166/2018 A.K.Colony, Deverjeevanahalli, Sagayapur, Bengaluru measuring East to West 18 feet and North to South 48 feet bounded by East & West: Private Property, North:Private Property and Road, South: Road. The ExP4 is gift deed dated 03/02/2015 executed by plaintiff to the defendant relating to the suit schedule item No.2 bearing site No.55, khatha No.734, Layout formed in converted Sy.No.98/1 situated at Rachenahalli Village, K.R. Puram Hobli, Bengaluru East Taluk, Bengaluru. The ExP5 is Memorandum of Understanding dated 03/05/2015 taken place between the plaintiff and defendant. The ExP6 is death certificate of Zareen Taj i.e., wife of plaintiff as per it she died on 01/12/2013.
30. On the contrary the defendant examined as DW.1 and deposed evidence as discussed above and in support of oral evidence DW.1 marked the documents ExD1 to ExD13. The ExD1 is Uthara Pathra relating to suit schedule property bearing No.304 in the name of defendant. The ExD2 is Katha Transfer 63 Judgment OS.No.25166/2018 Pre-receipt. The ExD3 is Katha Certificate and ExD4 is Katha Extract of the suit schedule item No.1 standing in the name of defendant. The ExD5 to ExD10 are Tax Paid Receipts. The ExD11 is rental agreement between defendant and one Nalule Sasmalie Vicky Iga relating to suit schedule item No.2 portion given on rent to her. The ExD12 is 'B' katha extract of suit schedule item No.2 standing in the name of defendant. The ExD13 is Tax Paid Receipt.
31. It is admitted fact that plaintiff and defendant are brothers. Further it is admitted fact that wife of plaintiff is Zareen Taj and she died. The plaintiff contention that he is owner of the suit schedule item No.1 & 2 properties. That he and his wife Zareen Taz have purchased the suit schedule item No.2 property on 03/02/2011 under the registered sale deed. That he is absolute owner of half share in item No.2 and his wife is having half share, his wife Zareen Taz died on 01/12/2013 leaving no issues and hence as per Sheriyath Law one of her half share in suit 64 Judgment OS.No.25166/2018 schedule item No. 2 property is inherited by him and another half portion is inherited by other heirs. Hence plaintiff is having 3/4th share in the suit schedule item No.2 property. The contention of the plaintiff that he is the absolute owner of the suit schedule item No.1 property purchased under the sale deed dated 09/02/1970. The defendant admits that plaintiff is the owner of the suit schedule item No.1 and 3/4th share in the suit schedule item No.2 property. The contention of the plaintiff that his wife Zareen Taz died on 01/12/2013 and after her death he fell into depression and he has no issues. Hence the defendant is the only brother living with him and the defendant shown more concern, love and affection towards the plaintiff and the behaviour of the defendant influenced on plaintiff and he started to stay with the defendant. At the time of death of his wife he was residing in the portion of item No.1 of schedule property and let out the remaining portion and collecting the rents. Further in respect of item No.2 only let out to the tenant and entrusted the management to the defendant 65 Judgment OS.No.25166/2018 to collect the rent. The defendant prevailed upon plaintiff to shift to his house shortly after the death of his wife. Hence the plaintiff locked his house at item No.1 of schedule property and shifted to the defendant house.
32. It is admitted fact that suit schedule Item No.1 property is individually purchased by the defendant No.1 and it is his exclusive property. Further it is admitted fact that suit schedule item No.2 property is jointly purchased in the name of plaintiff and his wife Zareen Taj. Further the burden is on defendant also to prove that the suit schedule items No.1 & 2 are gifted by plaintiff in his favour with his own free will and wish. As per the plaintiff the defendant has taken him to Sub Registrar Office to get prepare and register WILL to be executing by him in favour of the defendant relating to the suit schedule item No.2, but the defendant played fraud with and instead of WILL he got prepared the gift deed relating to the suit schedule item No.2 as per ExP4 and also got prepared and taken his signature on another gift deed 66 Judgment OS.No.25166/2018 relating to the suit schedule item No.1 as per ExP3. The plaintiff denied regarding execution of ExP3 & ExP4 Gift Deeds by him in favour of defendant relating to suit schedule item No.1 and 2 respectively and handing over actual possession of said properties to defendant. Further as per the contents of ExP3 Gift Deed the possession of suit schedule item No.1 property handed over by plaintiff to the defendant and further as per contends of ExP4 the plaintiff has handed over possession of suit schedule item No.2 property to the defendant. Whereas the defendant examined as DW.1 and in his cross-examination deposed evidence that "ದದವದ ಆಸಸಯ ಐಟಟ ನಟ.1 ರಲಲ ವದದಯಯ ಅವರ ಹಹಟಡತಯದಟದಗಹ ವದಸವದದರಯ ಎಟದರಹ ಸರ. ಐಟಟ ನಟ.1 ಆಸಸಯಲಲ ಹಟಭದಗದಲಲ ಅಟಗಡಗಳವಹ ಮತಯಸ ಹಟಭದಗದ ಮನಹಯಲಲ ವದದ ವದಸವದದದರಹ. ವದದಯಯ 2 ನಹನ ಮದಯವಹ ಮದಡಕಹಕಟಡಯ ಅವರ 2 ನಹನ ಹಹಟಡತಯಟದಗಹ ದದವದ ಆಸಸಯ ಐಟಟ ನಟ.1 ರಲಲ ವದಸವದದದರಹ ಎಟದರಹ ಸರ." The DW.1 further deposed the evidence that "ನದನಯ ದದವದ ಐಟಟ ನಟ.2 ಕಹಕ ಸಟಬಟಧಪಟಟಟತಹ ಬದಡಗಹ ಹಣವನಯನ ವಸಕಲ ಮದಡಕಹಕಟಡಯ ವದದಗಹ ಕಹಕಡಯತದಸ ಬಟದದಹದನನಹ . ಈಗಲಕ ಸಹ ನದನಯ ದದವದ ಐಟಟ ನಟ.2 ರ ಬದಡಗಹ ಹಣವನಯನ ವಸಕಲ ಮದಡಕಹಕಟಡಯ ವದದಗಹ ಕಹಕಡಯತಸದಹದನನಹ." The DW.1 in his cross examination further deposed 67 Judgment OS.No.25166/2018 evidence that "ದದವದ ಐಟಟ ನಟ.1 ಮತಯಸ ದದವದ ಐಟಟ ನಟ.2 ಕಹಕ ಸಟಬಟಧಪಟಟ ಮಕಲ ದದಖಲದತಗಳನಯನ ವದದ ನನಗಹ ಕಹಕಟಟಲಲ, ಅವವ ಅವರ ಹತಸ ಇವಹ, ನನಗಹ ಜಹರದಕಕ ಕದಪ ಕಹಕಟಟದದದರಹ." Therefore evidence of DW.1 discloses that at present also plaintiff along with his second wife residing in suit schedule item No.1 and he is giving suit schedule item No.2 on rent and rent amount is collecting by the defendant and said amount is also paying to plaintiff. Further in the cross examination DW.1 deposed evidence that " ವದದಯಯ ನನಗಹ ದದವದ ಐಟಟ ನಟ.1 ರ ಸದಸಧನನವನಯನ ಕಹಕಟಟಲಲ. ವದದಯಯ ನನಗಹ ದದವದ ಐಟಟ ನಟ.2 ರ ಸದಸಧನನವನಯನ ಕಹಕಟಟಲಲ ಎಟದರಹ ಸರಯಲಲ. ದದವದ ಐಟಟ ನಟ.2 ರಲಲ ಬದಡಗಹದದರರಯ ಇದದದರಹ ಎಟದರಹ ಸರ. ದದವದ ಐಟಟ ನಟ.2 ರ ಒಟದಯ ಭದಗದಲಲ ನನನ ಮಗಳಯ ಇದದದಳಹ ಎಟದರಹ ಸರ. ನನನ ಮಗಳಯ ಬದಡಗಹ ಕಹಕಡಯವವದಲಲ ಎಟದರಹ ಸರ." Therefore from the evidence of DW.1 it is clear that possession of suit schedule item No.1 & 2 is not handed over by plaintiff to the defendant and possession is with the plaintiff. But the ExP3 & ExP4 Gift Deeds discloses possession of suit schedule items No.1 & 2 properties were handed over by the plaintiff to the defendant. If at all the version of ExP3 & ExP4 are preferred then the defendant ought to have 68 Judgment OS.No.25166/2018 take possession of suit schedule property from the plaintiff. But the possession is not taken by the defendant and in fact the DW.1 is admitted that he is collecting the rent of the suit schedule item No.2 property and giving the said amount to the plaintiff. If at all the suit schedule property is gifted to him by plaintiff, then giving rent of said property to plaintiff does not arise. Hence this discloses that gift deeds ExP3 & ExP4 were got transferred by defendant and obtained signature of the plaintiff and plaintiff is not aware about said ExP3 & ExP4.
33. As per the plaintiff he was agreed to execute WILL of suit schedule propertis in favour of defendant and for that purpose he was taken to Sub Registrar Office by defendant, but wherein the signature was taken on the documents stating that said documents are WILLS. but obtained signatures on gift deeds. Therefore from the evidence as discussed above of DW.1 it is clear that the gift deeds are not executed by the plaintiff with his free will and wish. Further in the said ExP3 & ExP4 Gift Deeds two witnesses have 69 Judgment OS.No.25166/2018 signed, but the defendant has not examined said witnesses to prove that plaintiff with his free will and wish came to the Sub Registrar Office and executed Gift Deeds of suit schedule items No.1 and 2 in his favour.
34. That as per Mohammedan Law three essentials are to be fulfill for the gift 1) Declaration of Gift by Donor (Hiba), 2) Acceptance by the Donee (Kabul), 3) Deliver of possession of the Gift Property (Kubda). Therefore out of the said three essentials deliver of possession of the suit schedule item No.1 & 2 properties by plaintiff in favour of defendant is not proved by the defendant. Hence DW.1 admitted in his cross-examination that possession of item No.1 is not handed over to him and even evidence of DW.1 as discussed above discloses that possession of suit schedule item No.2 property is also not handed over by plaintiff to defendant and in the said property tenant is residing and plaintiff collecting the rent and in another portion of the same property daughter of defendant is residing without paying any 70 Judgment OS.No.25166/2018 rent. Therefore the essentials of Gift (Hiba) as per Mohammedan Law is not fulfilled by the defendant. Hence citations referred by the plaintiff counsel reported in 2015(4) KCCR 3858 (DB) as discussed above applies to the present case in hand. Therefore the plaintiff proved that Gift Deed dated 02/02/2015 and 03/02/2015 are null and void and not validly transfer the said property in the name of defendant and defendant is liable to cancel the said Registered Gift Deeds dated 02/02/2015 and 03/02/2015. As discussed above the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property as on the date of the suit and defendant causing interference. As discussed above the plaintiff is receiving the rent of suit schedule item No.2. Hence he is not entitled for any means profits from the defendant.
35. Further the plaintiff contended that the defendant is making efforts to take possession of the suit schedule item No.1 property by coercing the tenant to shift over him. It is also mentioned in 71 Judgment OS.No.25166/2018 the Gift Deed dated 02/02/2015 and he has handed over possession of the same to the defendant which is not proved. Hence it is imperative that the possession of the plaintiff to suit schedule item No.1 is safeguarded from interference by way of Permanent Injunction. Further the defendant is collecting rents from the tenants of suit schedule item No.2 property since past few months and stopped handing over the same to the plaintiff. Hence the defendant is in constructive possession of the suit schedule item No.2 property. Further the tenants inducted by the plaintiff have vacated and new tenants inducted in their place. Hence it is imperative of possession of item No.2 of suit schedule property be restored to the plaintiff. The plaintiff is seeking possession of item No.1 property in the event of defendant claiming to be contrary. Therefore as per the plaintiff the defendant was cultivating the rent of suit schedule item No.2 property and giving to him and he was inducted the tenants to vacate the property and in their place new tenants were came and 72 Judgment OS.No.25166/2018 defendant is collecting the rent from them, but not paid to him. Therefore this also discloses that the defendant is not in actual possession of the suit schedule item No.2 property, but at present tenants are in possession of the said property, but defendant is collecting the rent and in constructive possession of the said property. Therefore the plaintiff proved that he was in possession and enjoyment of the suit schedule items No.1 and 2 properties and defendant causing interference to his possession and enjoyment. Therefore the plaintiff is entitle for the relief claimed in the plaint against the defendant. But not entitle for the mesne profits as prayed. The plaintiff proved Issues No.1 to 4 and and partly proved Issue No.6 and failed to prove Issue No.5. Therefore I answer Issues No.1 to 4 in Affirmative and Issue No.6 partly in Affirmative and Partly in Negative and Issue No.5 in Negative.
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Judgment OS.No.25166/2018 36. Issue No.7:
In view of above discussion I proceed to pass following:
:ORDER:
The suit of the plaintiff is hereby partly decreed with costs.
It is ordered and decreed declaring that the Gift Deeds dated 02/02/2015 and 03/02/2015 in respect of the suit schedule items No.1 and 2 properties are null and void and not binding on the plaintiff and defendant is directed to cancel the said Gift Deeds and in case of default on the part of the defendant the plaintiff is at liberty to get cancel the said Gift Deeds in procedure of law.
It is further ordered and decreed that the defendant is restrained from causing interference to 74 Judgment OS.No.25166/2018 the plaintiff's possession and enjoyment in the suit schedule properties and also dispossessing the plaintiff from the suit schedule properties.
Draw decree accordingly.
(Dictated to the stenographer, typed by him. Corrected on line in computer, taken printout, then again corrected, signed and pronounced by me in the open court on this 22nd day of March 2022).
(Smt.Suvarna K. Mirji) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE :ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFF:
PW1 : Syed Ahmed S/o late Syed Peer
DOCUMENTS MARKED FOR THE PLAINTIFF:
ExP1 : Sale deed dt.09.02.1970
ExP2 : Sale deed dt.03.02.2011
ExP3 : Gift deed dt.02.02.2015
ExP4 : Gift deed dt.03.02.2015
ExP5 : MOU dt. 03.02.2015
ExP6 : Death certificate of Zareen Taj
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Judgment OS.No.25166/2018
WITNESSES EXAMINED FOR THE DEFENDANTS:
DW1 : Syed Amir Pasha S/o late Syed Peer
DOCUMENTS MARKED FOR THE DEFENDANTS:
ExD1 : letter
ExD2 : Khatha Transfer fee receipt
ExD3&4 : Khatha Extract and Khatha Certificate
ExD5to10 : Yax paid receipts
ExD11 : Rental agreements
ExD12&13: B Khatha and tax paid receipt
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE
BENGALURU.