Bangalore District Court
Srikanth Ghantasala vs G Vijayalakshmi on 14 November, 2024
KABC0A0032422017
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-29) MAYOHALL, BENGALURU
Dated this the 14th day of November, 2024.
PRESENT:
Sri BALAPPA APPANNA JARAGU, B.Sc., LL.M.,
XXVIII Additional City Civil and Sessions Judge,
Bengaluru.
ORIGINAL SUIT No.26116/2017
PLAINTIFF : Srikanth Ghantasala,
S/o. Late Srinivasa Murthy
Ghantasala,
Aged about 45 years,
Residing at No.10323,
Links Land Dr. Huntersville,
North Carolina 28078, USA.
Presently staying at C/o.
B.V. Satyanarayana, OASIS
Nine Apartments, B103,
ISRO Layout, Bengaluru-560 078.
(By Smt. Ganga Bai, Advocate)
-VERSUS-
DEFENDANTS : 1. Smt. G. Vijayalakshmi,
Cont'd..
2 O.S.No.26116/2017
Residing at No.480, 6th Main,
HMT Layout, R.T. Nagar,
Opposite RT Nagar, Bus Depot,
Bengaluru - 560 032.
2. Smt. Vishalakshi Anand,
Residing at No.480, 6th Main,
HMT Layout, R.T. Nagar,
Opposite RT Nagar, Bus Depot,
Bengaluru - 560 032.
Also at:
Smt. Vishalakshi Anand,
Residing at No.3, Deneden Ave,
Kelly Ville Ridge, NSW 2155,
Australia.
3. Apoorva Sharma,
Residing at No.E-1201, Platinum
City Industrial Area, Stage -1,
Yeshwanthpur, Bengaluru- 560022.
4. Academy for Creative Teaching
India Private Limited,
Residing at No.480, 6th Main,
HMT Layout, RT Nagar,
Opposite RT Nagar, Bus Depot,
Bengaluru - 560 032.
Represented by
Smt. Sunitha Phadnis.
(D.1 and D.2 by Sri O. Rajanna, Advocate)
(D.3: Deleted)
(D.4 by Sri Syed Jmran, Advocate)
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Date of Institution of the Suit : 07-10-2017
Nature of the Suit (Suit on : Declaration Suit
pronote, Suit for declaration
and possession, Suit for
injunction etc,)
Date of the commencement : 23-11-2021
of recording of the evidence
3 O.S.No.26116/2017
Date on which the Judgment : 14-11-2024
was pronounced
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Year/s Month/s Day/s
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Total duration : 07 years,01month, 07 days.
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(BALAPPA APPANNA JARAGU)
XXVIII Additional City Civil and
Sessions Judge, Mayohall, Bengaluru.
JUDGMENT
This is suit instituted by the Plaintiff against the defendants for the relief of declaration to declare that, plaintiff is absolute owner of suit 'A' and 'B' schedule mentioned properties. Further declare that, gift deed dated 03.12.2015 executed by defendant No.1 in favour of defendant No.2 in respect of suit 'A' schedule property is not valid and same is not binding on plaintiff. Cancel the gift deed dated 03.12.2015 executed by defendant No.1 in favour of defendant No.2 in respect of suit 'A' schedule property. Direct the defendant No.1 and 2 to hand over original title deeds in respect of suit 'A' and 'B' schedule properties to the plaintiff. Direct the defendant No.1 and 2 to hand over vacant possession of suit 'A' and 'B' schedule properties 4 O.S.No.26116/2017 to the plaintiff. The plaintiff has further sought for permanent injunction, restraining the defendants from interfering with his peaceful possession and enjoyment of suit 'A' and 'B' schedule properties. Direct the defendant No.2 to pay an amount of Rs.51,97,868/- along with interest at the rate of 12% per annum from date of suit, till its actual realization. The plaintiff also sought for mesne profits in respect of rent collected by defendants in respect of suit 'A' and 'B' schedule properties.
2. The case of the plaintiff in brief is as under:-
That, defendant No.1 is mother and defendant No.2 is elder sister of plaintiff herein. The plaintiff did his schooling and college at Bengaluru. The plaintiff went to US on a job prospect in the year 1998 and employed in US. The plaintiff had authorized his father Srinivas Murthy to purchase property in his favour and on his behalf. In the month of May-June 2000, plaintiff visited Bengaluru and selected property at R.T. Nagar. The plaintiff had transferred funds to the account of his father to purchase suit 'A' schedule property. In the month of October 2000, his father informed plaintiff 5 O.S.No.26116/2017 that, said property was purchased. Thereafter, plaintiff started funding for the purpose of construction of multi- stored building over 'A' schedule property. The plaintiff had funded total amount of USD 1,38,000 towards purchase of site and construction of building over suit 'A' schedule property. In the year 2006, plaintiff has visited India and selected suit 'B' schedule property and authorized his father to purchase property in his name and transferred funds of USD 1,00,297 to his father's account. The plaintiff has further transferred USD 58,886 to defendant No.2 to purchase apartment No.1 in 'E' Block, 10th Floor, Platinum City, Yashwanthpur, Bengaluru. The defendant No.2 agreed to repay an amount of Rs.25,98,934/- along with interest at the rate of 10% per annum to the plaintiff. The plaintiff entrusted maintenance and management of suit 'A' and 'B' schedule properties to his father. The father of plaintiff died on 09.11.2015. After performing last rites of his father, the plaintiff enquired documents in respect of suit 'A' and 'B' schedule properties, defendant Nos.1 and 2 were evasive. The plaintiff in the month of June 2017 come to Bengaluru and on enquiry and search in 6 O.S.No.26116/2017 Sub-Registrar Office, he obtained documents pertaining to suit 'A' and 'B' schedule properties and thereby come to know suit 'A' and 'B' schedule properties are not purchased exclusively in his name as authorized by him to his father. Thereafter, plaintiff also come to know that, the defendant No.2 by taking advantage of mental condition of defendant No.1 got executed gift deed dated
03.12.2015 in her favour in respect of suit 'A' schedule property. On 29.06.2017, plaintiff issued legal notice to the defendants No.1 and 2 calling upon them to give accounts of suit properties and to cancel gift deed dated 03.12.2015. The defendants have sent untenable reply. On these pleadings, the plaintiff has prayed to decree the suit as prayed in plaint.
3. In response to the service of suit summons, the defendants No. 1 and 2 have tendered their appearance before the court through their counsels. The defendants have filed their written statement and contested the case.
4. The contents of written statement of defendants No.1 and 2 in brief are as under :- 7 O.S.No.26116/2017
That, suit of the plaintiff is not maintainable and same is barred by law of limitation. Suit 'A' schedule property is self acquired property of Sri Srinivasa Murthy and defendant No.1 herein. After demise of Srinivasa Murthy, defendant No.1 become sole and absolute owner of suit 'A' schedule property having all right, title and interest over the same. Srinivasa Murthy was an Artist and Photographer having employed in Deccan Herald, Prajavani and Sudha journals and he was working since 1960. Out of his hard earned money, he purchased site at Kengeri and constructed house. Thereafter, he purchased Apartment building in Vyalikaval, Malleshwaram, Bengaluru. Out of sale proceeds of Kengeri and Vyalikaval properties as well as Stridhana of defendant No.1, suit 'A' schedule property was purchased in the names of Srinivasa Murthy and defendant No.1 under sale deed dated 23.10.2000. It is further contended that, the defendant No.1 out of her love and affection has gifted suit 'A' schedule property to defendant No.2 by executing registered gift deed dated 03.12.2015. The defendant No.2 has contended, she accepted said gift and khata and other revenue records 8 O.S.No.26116/2017 pertaining to suit 'A' schedule property have been transferred in her name and she is in possession and enjoyment of suit 'A' schedule property as absolute owner. The defendant No.1 has specifically contended, suit 'B' schedule property purchased under sale deed dated 11.12.2008 and herself and her husband have every right to enjoy suit 'B' schedule property during their lifetime. As such, plaintiff does not have absolute right over suit 'B' schedule property during lifetime of defendant No.1. The defendant No.1 rented suit 'B' schedule property to tenants on 01.01.2018 and rent agreement was also executed, now tenants are in possession of the same. The plaintiff does not have any exclusive right over suit 'B' schedule property. It is denied that, the plaintiff has transferred funds to the account of Srinivasa Murthy to purchase suit 'A' and 'B' schedule properties in his name. It is also contended, plaintiff never funded any amount either to purchase or for construction of building over suit 'A' schedule property. The defendant No.2 admitted that, at the time of purchase of apartment at Platinum City, Yashwanthpur, Bengaluru, she received sum of 9 O.S.No.26116/2017 Rs.25,98,934/- from plaintiff agreeing to return the money in 10 years. It is specifically contended by defendant No.2 that, already she has repaid the amount to the plaintiff. The suit of the plaintiff bad for non-
joinder of necessary parties and also bad for mis-joinder of parties. There is no cause of action for the plaintiff to file present suit. However, after death of Srinivasa Murthy, the plaintiff made up his mind to knock off suit schedule properties and filed present suit making false and baseless allegations. On these grounds, it is requested to dismiss the suit filed by plaintiff.
5. On the basis of above pleadings of both parties, this court has framed the following :-
ISSUES
1. Whether the plaintiff proves that he had transferred funds for purchase of land of the suit schedule 'A' Property?
2. Whether the plaintiff proves that he had transferred funds for construction of building on the suit schedule 'A' property?
3. Whether the plaintiff proves that he had transferred for purchase of the suit schedule 'B' property?10 O.S.No.26116/2017
4. Whether plaintiff proves that he had lent an amount of USD$ 58,866 (Rs.25,98,934/-) for purchasing the apartment at E-10/01, Platinum City Apatments, HMT Main Road, Yeshwanthpura, Bengaluru - 560 022?
5. Whether the plaintiff proves that he is entitled to recover the amount of Rs.51,97,868/- along with interest @ 12% per annum from the date of filing of this suit?
6. Whether the defendants prove that the suit is barred by limitation?
7. Whether the defendants prove that the schedule 'A' property was purchased and constructed from the funds of the father of the defendants No.2 and plaintiff and from the stridhana of the defendant No.1?
8. Whether the defendant No.2 proves that she repaid the loan to the plaintiff?
9. Whether the plaintiff proves that the Gift Deed dated 03.12.2015 in respect of the suit schedule property was executed by the defendant No.1 in favour of the defendant No.2 without 11 O.S.No.26116/2017 any authority and not binding on the plaintiffs?
10.Whether the plaintiff entitled for reliefs of cancellation of Gift Deed dated 03.12.2015 and other relief's sought by plaintiffs?
11. What order or decree?
ADDITIONAL ISSUES DATED 24.09.2021.
1. Whether the plaintiff proves that the defendant No.1 and 2 are in unlawful possession of suit schedule 'A' and 'B' properties?
2. Whether the plaintiff proves that the defendants No.1 and 2 have also let out several tenements of schedule 'A' property and the entire schedule 'B' property?
3. Whether the plaintiff proves that the defendants No.1 and 2 have been collecting rents from suit schedule 'A' and 'B' properties?
4. Whether the plaintiff proves that he is entitled to the mesne profits arising out the rents ad profits from suit schedule 'A' and 'B' properties?
12 O.S.No.26116/2017
ADDITIONAL ISSUES DATED 11.09.2023.
1. Whether the suit of the plaintiff is maintainable as contended?
2. Whether the suit of the plaint is paid proper and adequate court fee by the plaintiff?
3. Whether the suit is bad for mis-joinder and non-joinder of proper and necessary parties?
4. Whether the plaintiff got a cause of action to file the suit?
6. To substantiate the case of the plaintiff, the plaintiff examined himself as PW1 and produced in all 60 documents as Exs.P1 to Ex.P.60. Defendant No.1/Smt. G. Vijayalakshmi examined herself as DW.1 and produced in all 16 documents as Ex.D1 to D.16.
7. I have heard the arguments of learned counsel for plaintiff and learned counsel for defendants and I have perused the case records.
8. My answers to the above issues are as under-
ISSUE No.1 - In the affirmative;
ISSUE No.2 - In the affirmative;
13 O.S.No.26116/2017ISSUE No.3 - In the affirmative;
ISSUE No.4 - In the affirmative;
ISSUE No.5 - Partly in the affirmative; ISSUE No.6 - In the Negative;
ISSUE No.7 - Partly in the affirmative; ISSUE No.8 - In the negative;
ISSUE No.9 - In the affirmative;
ISSUE No.10 - Partly in the affirmative; Addl.ISSUE No.1 DATED 24.9.2021 - In the negative Addl.ISSUE No. 2 DATED 24.9.2021- In the affirmative; Addl.ISSUE No. 3 DATED 24.9.2021- In the affirmative; Addl.ISSUE No. 4 DATED 24.9.2021- In the affirmative subject to enquiry on mesne profits.
Addl.ISSUE No.1 DATED 11.9.2023 - In the affirmative; Addl.ISSUE No.2 DATED 11.9.2023 - In the affirmative; Addl.ISSUE No.3 DATED 11.9.2023 - In the negative; Addl.ISSUE No.4 DATED 11.9.2023 - In the affirmative;
ISSUE No.11 - As per final order, for the following -
REASONS
9. ISSUES NO.1 TO 3 AND 7 :- As these issues are inter-related to each other and involves common appreciation of facts and evidence on record, findings on 14 O.S.No.26116/2017 one issue are bearing on other issues, in order to avoid repetition of facts and for convenience sake, all issues are taken together for common discussion.
10. Before adverting an attention to disputed facts, let first discuss about some of admitted facts. On going through the pleadings of parties and evidence on record, it is no more dispute that, the plaintiff and defendant No.2 are children and defendant No.1 is wife of deceased Srinivasa Murthy Ghantasala. It is definite case of plaintiff that, he transferred funds to his father's account Srinivasa Murthy Ghantasala to purchase of suit 'A' and 'B' schedule properties in his name exclusively. It is also specific contention of plaintiff that, he executed GPA in favour of his father authorizing him to purchase suit 'A' and 'B' schedule properties in his name out of fund transferred by him to the account of his father. On the other hand, the defendants in their written statement have specifically contended that, deceased Srinivasa Murthy Ghantasala and defendant No.1 herein are absolute owners of suit 'A' schedule property and they have got exclusive right, title and interest over the same. It is also specific 15 O.S.No.26116/2017 contention of defendant No.1 and same is deposed by her before the court in her examination in chief that, after demise of her husband Srinivasa Murthy Ghantasala, she become sole and absolute owner of suit 'A' schedule property.
11. According to defendants No.1 and 2, Srinivasa Murthy Ghantasala was an Artist and photographer having employed in Deccan Herald, Prajavani and Sudha journals and he was working since 1960. Srinivasa Murthy out of his hard earned money, he purchased site at Kengeri and constructed a house. Thereafter, he also purchased an apartment building in Vyalikaval, Malleswaram, Bengaluru. Srinivasa Murthy sold those properties, out of sale proceeds and Stridhana of defendant No.1, they purchased suit 'A' schedule property under registered sale deed dated 03.10.2000 for valuable sale consideration amount.
12. It is worth to note here that, certified copy of sale deed dated 03.10.2000 in respect of suit 'A' schedule property as shown in schedule to the plaint has been produced as per Ex.P.1. On perusal of contents of registered sale deed, it is forthcoming, the 16 O.S.No.26116/2017 deceased Srinivasa Murthy and defendant No.1 being shown as purchasers. In deed it is further mentioned, they have purchased suit 'A' schedule property for sale consideration of Rs.24,00,000/-.
13. The plaintiff in order to substantiate his claim of transfer of funds to the account of his father to purchase suit 'A' schedule property has much relied on bank statements as per Exs.P.14 to P.17. These are all bank statements issued by Nations Bank, USA which stands in the name of plaintiff herein. In addition, the plaintiff has produced an evidence of his sister Leelavathi before General Court of Justice, State of North Carolina in the proceeding between himself and Smt. Leelavathi. Fact to be noted here, said documents marked with objection of learned counsel for defendants. In said proceedings, the Leelavathi has deposed that, plaintiff transferred amount to the account of Srinivasa Murthy.
14. It is significant to note here that, as per court order, the statement of accounts and other related documents of Srinivasa Murthy have been produced before the court by National Co-operative Bank Limited, 17 O.S.No.26116/2017 Gandhi Bazaar Main Road Branch, Bengaluru and same are marked as per Ex.P.37.
15. It is to be noted here that, the defendant No.1, who examined as D.W.1 in her cross-examination at page 33 has deposed that, it is the plaintiff who has given amount to purchase suit 'A' schedule property and constructed house over the same. In view of clear say of D.W.1 in her cross-examination that, it is plaintiff who has funded amount for purchase of suit 'A' schedule property and construction over it, even though Ex.P.38 got marked with objections of learned counsel for defendants, contents of said document has to be looked into and same has to be appreciated along with evidence of D.W.1 as mentioned above. The learned counsel for plaintiff in support of his arguments has relied upon by the decision of Hon'ble Supreme Court reported in (2013) 9 SCC 152 in case of Vathsala Manickavasagam and Others Vs. N. Ganesan and Another, wherein it is observed, admission which constitute substantial piece of evidence, which can be relied upon for proving the veracity of facts incorporated therein. When once admission in a statement either oral 18 O.S.No.26116/2017 or documentary is found, then whole onus would shift to party who made such admission and it will become an imperative duty on such party to explain it.
16. The D.W.1 in her cross-examination has denied, the plaintiff in order to purchase suit 'A' schedule property has transferred funds USD 1,38,000 same is denied as false. It is also suggested to D.W.1 that, when plaintiff transferred to Buffalo city in USA, as there was no PNS bank, plaintiff transferred funds to the account of his father through Leelavathi, same is denied as false. It is also denied by D.W.1 that, the plaintiff has further transfer USD 93,000 to the account of Srinivasa Murthy.
17. On combined appreciation of contents of Exs.P.14 to P.17, Ex.P.37 and Ex.P.38 and evidence of D.W.1 wherein she has clearly stated, it is the plaintiff who transferred funds to the account of Srinivasa Murthy for purchase of suit 'A' schedule property, the plaintiff has sufficiently established before the court with the help of documentary evidence that, he transferred funds to the account of his father to purchase suit 'A' schedule property.
19 O.S.No.26116/2017
18. It is material to note here that, copy of sale deed dated 11.12.2008 in respect of suit 'B' schedule property has been produced before the court as per Ex.P.6. On careful perusal of contents of sale deed, the names of plaintiff, his father and his mother are shown as purchasers of suit 'B' schedule property. In clause 6 of Ex.P.6, it is clearly mentioned, the entire sale consideration amount was paid by 1st purchaser-Mr. Srikanth Ghantasala, who is plaintiff herein. In document itself there is recital that, it is the plaintiff who paid entire sale consideration amount so as to purchase suit 'B' schedule property.
19. It is pleaded by plaintiff himself in the plaint and same is deposed by him in his examination-in-chief that, in the year 1998 he went to US on job and get employed in US. This fact is not disputed defendants. By pleadings and evidence it stands proved that, plaintiff in the year 1998 had been to USA and secured job therein. The defendants in order to prove their contention that, out of sale proceeds of Kengeri property and Vyalikaval property which are in the name of Srinivasa Murthy, suit schedule properties were 20 O.S.No.26116/2017 purchased have produced sale deed dated 14.11.2002 and 17.02.2000 as per Exs.D.7 and D.14 respectively.
20. On perusal of contents of Ex.D.14, Srinivasa Murthy sold site No.424 of Kengeri on 17.02.2000 for sale consideration of Rs.6,80,000/-. As per contention of Ex.D.7 Srinivasa Murthy sold apartment at Vyalikavala, Malleswaram for sale consideration of Rs.5,50,000/-. It is argued on behalf of learned counsel for plaintiff that, as per statement of accounts of Srinivasa Murthy as on date of purchase of suit 'A' schedule property only an amount of Rs.30,000/- was pending. As such contention of defendants that, suit 'A' schedule property was purchased out of sale proceeds of Kengeri site is not sustainable.
21. It is further to be noted here that, the plaintiff has produced salary slip of Srinivasa Murthy for the month of January 2001 as per Ex.P.29. As per contents of said document, gross salary of Srinivasa Murthy was Rs.18,464.43 and take home salary was Rs.3,415/-. Based on said document, an attempt was made by the plaintiff to establish that Srinivasa Murthy had no such huge income so as to purchase suit 'A' schedule 21 O.S.No.26116/2017 property out of his own income and income of defendant No.1.
22. As already discussed, it is not in dispute in the year 1998 only the plaintiff had been USA for job. It is specifically contended by defendants that, plaintiff was very dull in education and he could obtain only II-class in his SSLC and PUC examinations and because of the same, he could not get free seat for Engineering. Therefore, Srinivasa Murthy had borrowed hand loans and defendant No.1 pledged various golden ornaments, they managed to get him a payment seat in Engineering Course in a reputed institution. In order to disprove these contention of defendants and to establishes the plaintiff was through out meritorious student and he got seat in Engineering course on merits, no documents placed on record. These are all documents which are definitely readily available with plaintiff. Those documents which are available with plaintiff not produced before the court to disprove contentions of the defendants.
23. The D.W.1 in her cross-examination has stated, the plaintiff transferred amount to the account 22 O.S.No.26116/2017 of Srinivasa Murthy so as to repay loan availed for his education. Further, fact to be noted here that, no doubt it is true, in Ex.D.14, it is not mentioned in order to purchase suit 'A' schedule property or any landed property, Srinivasa Murthy had sold site at Kengeri but fact remains that, within short span of 8 months from date of sale of Kengeri site, suit 'A' schedule property was purchased as per Ex.P.1. May be it is true, as contended by learned counsel for plaintiff at that time of purchase suit 'A' schedule property as per Ex.P.1, there was only Rs.30,000/- amount in the account of Srinivasa Murthy, that itself is not sufficient to say entire sale proceeds under Ex.D.14 was not with Srinivasa Murthy. Further, it is to be noted here, during the time when construction over suit 'A' schedule property taken up, Vyalikaval property was sold by Srinivasa Murthy as per Ex.D.7.
24. As already discussed, as per documentary evidence which are American Bank statement and evidence of Leelavathi as per Ex.P.38 and statement of accounts as per Ex.P.37, the plaintiff has sufficiently establishes that, he has transferred major funds to the 23 O.S.No.26116/2017 account of his father to purchase the suit 'A' schedule property and to put up construction over same. At the same time, the amount of sale proceeds of Kengeri site and Vyalikaval contributed by deceased Srinivasa Murthy for purchase of suit 'A' schedule property and construction of building over it can not ruled out. May be it is true, the plaintiff has contributed major amount for purchase of suit 'A' schedule property and construction over it. Looking into the sale of Kengeri site which is just 8 months prior to purchase of suit 'A' schedule property and sale of Vyalikaval property during construction over suit 'A' schedule property contribution of sum of amounts from Srinivasa Murthy for purchase of suit 'A' schedule property and construction over it can't be ruled out.
25. The learned counsel for plaintiff argued that, plaintiff has transferred funds to the account of his father with an intention to purchase property in his name. As such, suit 'A' schedule property and construction over it is out of funds transferred by plaintiff is established.
24 O.S.No.26116/2017
26. Herein the case as already discussed, there are material to show prior to purchase of suit 'A' schedule property, the property owned by Srinivasa Murthy was sold and during construction of building over suit 'A' schedule property, another property at Vyalikaval was sold. It is also on record that, Srinivasa Murthy was an Artist he was working for journals and he was drawing salary. It can very well gathered from these facts that, Srinivasa Murthy got good income otherwise it would not have possible for him to spend amount for the plaintiff to get him payment seat in reputed institution for his engineering and send him to abroad.
27. Further, as per Ex.P.31 and Ex.P.32 it can be gathered, the plaintiff used to pay amount to his father and never maintained account for having transferred funds to his father. At the same time his father also during his life time had not maintained any account to show how much amount he spent for education and upbringing of his son plaintiff. All was good in the family till difference of opinion started and parties have gone to extent of filing criminal cases as mentioned in 25 O.S.No.26116/2017 para 3 of additional written statement of defendants. Till then plaintiff and his parents had cordial relationship as joint family members. It is fact that, by the time difference started in the family already property in names of Srinnivas Murthy were sold but it is well settled principles of Hindu Law that, existence of joint estate is not an essential requisite to constitute a joint family and a family which does not own any property may nevertheless be joint.
28. Admittedly, as contended by plaintiff alleged GPA executed by him in favour of Srinivasa Murthy to purchase the suit 'A' schedule property exclusively in his name is not produced before the court. Fact to be noted here, the plaintiff in respect of other documents which are produced by bank filed application and requested the court to call for those documents. Similar steps not taken by plaintiff requesting the court to call for original GPA alleged to have executed by him in favour of Srinivasa Murthy authorizing him to purchase suit 'A' and 'B' schedule properties exclusively in his name.
26 O.S.No.26116/2017
29. As already discussed may be it is true, the plaintiff has contributed major portion of consideration amount for purchase of suit 'A' and 'B' schedule properties, but looking into other facts discussed above, contribution of amount by deceased Srinivasa Murthy to purchase suit 'A' and 'B' schedule properties cannot be ruled out. Under these circumstances, proper conclusion would be, the plaintiff is joint owner of suit 'A' schedule property along with defendant No.1. It is also fact that, though major funds for purchase of suit 'A' schedule property was transferred by plaintiff his name not shown as purchaser as shown in subsequent sale deed as per Ex.P.6.
30. Further it is to be noted here, it is well settled law that, any property by any joint family member purchased in the name of female member of the family, said property become her absolute property. On this proposition of law reference has to be made to decision of Hon'ble High court repeated in 2015 (1) KLJ 698 in case of Smt. Gowramma Dead by Lrs and another V/ s Rangappa, wherein it is held that, even it is presumed that, the joint family by investing its funds 27 O.S.No.26116/2017 has purchased a property in the name female member such property becomes absolute property of the female member. Herein the case, the defendant No.1 has not established her contention that, out of her Stridhana she contributed amount for purchase of suit 'A' and 'B' schedule properties. If all these facts are appreciated with fact that, by admitting plaintiff has contributed funds for purchase of property in subsequent sale deed pertaining to suit 'B' property his name was shown as one of the purchaser and but same was not done in in respect of suit 'A' schedule property. In view of principles laid down in above decisions, the defendant No.1 shown as one of the purchaser of suit 'A' and 'B' schedule properties. She become joint owner of suit 'A' and 'B' schedule properties along with plaintiff. Hence, I answer Issues No.1 to 3 in the affirmative and Issue No.7 partly in the affirmative.
31. ISSUES NO.4, 5 AND 8 :- As these issues are inter-related to each other and involves common appreciation of facts and evidence on record, findings on one issue are bearing on other issues, in order to avoid 28 O.S.No.26116/2017 repetition of facts and for convenience sake, all issues are taken together for common discussion.
32. It is specific case of plaintiff and same is deposed by him before the court that, he has transferred 58,866 USD which is 25,98,934/- to the defendant No.2 for purchase of property bearing apartment No.1 in 'E' Block, 10 th Floor, Platinum City, Yashwanthpur, Bengaluru. It is required to be noted here, the defendant No.2 in para 11 of her written statement has categorically admitted that, she has requested the plaintiff to lent money to her for purchase of apartment at Platinum City with assurance she would return amount to the plaintiff in 10 years. The D.W.1 in her cross-examination has also admitted, the plaintiff has paid amount to defendant No.2 to purchase apartments at 10th Floor, Platinum City, Bengaluru. In view of clear admission by defendant No.2 in her pleadings and admission of D.W.1 in her cross- examination as mentioned above, plaintiff has sufficiently proved, he paid an amount of Rs.25,98,934/- to the defendant No.2 to purchase 29 O.S.No.26116/2017 apartment at E-10/01 Platinum City Apartment, Yashwanthpur, Bengaluru.
33. The defendant No.2 in her pleadings and D.W.1 in her evidence have stated, the defendant No.2 has already repaid said amount to the plaintiff. It is significant to note here that, there is no details in written statement of defendant No.2 or there is documents produced by her before the court to show on which date and how much amount she repaid to the plaintiff. Further more, defendant No.2 has not entered into witness box and subjected herself as cross- examination so as to withstand her contention that, she had repaid amount to the plaintiff as agreed by her. Under these facts and circumstances, inference can be drawn that, defence set by the defendant No.2 is false or same is not proved. On this proposition of law reference has to be made to decision of Hon'ble Supreme Court reported in (1999) 3 SCC 573 in case of Vidhyadhar V/s Manikrao, wherein it was observed that, where party to the suit does not appear in the witness box and states his case on oath and does not offer himself to be cross examined by the other side, a presumption would 30 O.S.No.26116/2017 arise that, the case set up by him is not correct. On same proposition of law, learned counsel for plaintiff has relied upon the decision reported in 2021 (2) SCC 718 in case of Iqbal Basith and Others Vs. N. Subbalakshmi and Others, wherein it is held that, "adverse presumption can be drawn if she does not present herself for cross-examination and refuses to enter the witness box in order to refute allegations made against her to support her pleadings in her written statement."
34. The learned counsel for plaintiff has further argued that, in reply notice as per Ex.P.9, defendants No.1 and 2 have stated, they have not received any amount from plaintiff to purchase apartments at E- 10/1, Platinum City, Yashwanthpur, Bengaluru. As such, they are not liable to pay an amount. In written statement the defendant No.2 has stated, she has received amount from plaintiff. The person who takes inconsistent stands is not reliable one. In this regard, learned counsel for plaintiff has relied upon the decision reported in (2018) 10 SCC 707 in case of Suzuki Parasrampuria Suitings Private Limited Vs. Official 31 O.S.No.26116/2017 Liquidator of Mahendra Petrochemicals Limited (in Liquidation), wherein it is held that, "A litigant can take different stands at different times but cannot take contradictory stands in the same case. A party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting stands".
35. As already discussed above, the defendant No.2 has admitted, she has received an amount of Rs.25,98.934/- from plaintiff. The defendant No.2 has not proved she has repaid said amount to the plaintiff. The plaintiff has claimed amount from defendant No.2 with interest at the rate of 12% per annum. There is no material placed on record to show, the defendant No.2 has agreed to repay the said amount to the plaintiff with interest at the rate of 12% per annum. As per Sec. 34 of CPC, the court may order interest at such rate as deems reasonable to be paid on principal from date of suit to the date of decree and from date of decree to date of payment. Looking into purpose for which the defendant No.2 had received amount from plaintiff, the court can award interest at such rate not exceeding 6% per annum. The defendant No.2 has to repay an amount of 32 O.S.No.26116/2017 Rs.25,95,934/- to the plaintiff with interest at the rate of 6% from 11.12.2008 till its actual realization.
36. It is to be noted here, as agreed by defendant No.2 herself she has stated she agreed to repay an amount to the plaintiff within 10 years. As such, question of limitation to say claim of plaintiff against the defendant No.2 to recover an amount is not barred by law of limitation not at all arises. Amount was advanced in the year 2008 and suit filed in the year 2017 same is within 9 years from date of advancing the amount. Hence, I answer Issue No.4 in the affirmative, Issue No.5 partly in the affirmative and Issue No.8 in the negative.
37. ISSUE NO.6 :- It is contention of defendants that, suit of the plaintiff is barred by law of limitation. It is further argued on behalf of learned counsel for defendants that, intentionally plaintiff has not sought for cancellation of sale deeds. Sale deed in respect of suit 'A' schedule property was executed on 23.10.2000 and sale deed in respect of suit 'B' schedule property was executed on 11.12.2008. Suit filed after lapse of 15 years from date of execution of Ex.P.1 and it is after 33 O.S.No.26116/2017 lapse of 7 years from date of execution of Ex.P.6. It is also argued that, plaintiff ought to have filed suit within three years from date of execution of sale deeds. Further it is argued on behalf learned counsel for defendants on 13.06.2012 the plaintiff has executed declaration as per Ex.P.35. Within period of three years from date of execution of Ex.P.35, the plaintiff ought to have filed suit. It is also argued that, claim of recovery of amount from defendant No.2 also barred by law of limitation.
38. On the other hand, the learned counsel for plaintiff has argued that, the plaintiff was under
bonafide impression and belief that, his father had purchased suit 'A' and 'B' schedule properties in his name out of fund transferred by him to account of his father. As plaintiff was residing in USA there was no occasion for the plaintiff to enquire about sale deeds. Though, he visited his parents in the year 2000, 2002, 2006, 2010, 2012 and 2014 but he has not enquired about sale deeds pertaining to suit properties. It is further argued on behalf of learned counsel for plaintiff that, following the demise of his father on 09.11.2015, 34 O.S.No.26116/2017 the plaintiff returned to India and performed funeral and last rites, since it was a solemn occasion, plaintiff did not want to precipitate the issue regarding properties. When he enquired about documents related to suit properties, defendants were evasive and non- cooperative. Even in reply notice dated 21.07.2017 defendants have stated, there is no question of the plaintiff requesting any papers of the properties as he is no way concerned to them. In the month of June 2017, plaintiff come to India from USA and after conducting enquiry and jurisdictional Sub-Registrar Office he come to know about sale deeds. After coming to fraudulent transfer of properties, plaintiff filed present suit as such suit is well within time.
39. The learned counsel for plaintiff in support of his arguments has relied upon decision of Hon'ble Supreme Court reported in (2022) 8 SCC 401 in case of Sarapal Kaur Anand Vs. Praduman Singh Chandhok and Others, wherein it is held that, the period of limitation shall not begin to run until the plaintiff has discovered fraud.
35 O.S.No.26116/2017
40. On the other hand, learned counsel for defendants has relied upon decision of Hon'ble Supreme Court reported in AIR 2020 SCC 3310 in case of Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) (D) by LR's, wherein it is held that, to obtained any declaration limitation provided for such relief is three years when right to sue first accrues. As per Article 59 of Limitation Act to cancel or set aside an instrument or decree time limitation is 3 years when the document first come to the knowledge of party.
41. The learned counsel for defendants has further relied upon decision of Hon'ble Supreme Court report in AIR 2011 SC 1350 in case of Khatri Hotels Private Limited and Another Vs. Union of India, wherein it is held that, while enacting article 58 of Limitation Act legislature as designedly made dispatcher from language of article 120. The word first has been used between the words sue and accrued. This suit mean that if suit is based on multiple causes of action period of limitation will begin to run from the date when to sue first accrues.
36 O.S.No.26116/2017
42. The learned counsel for defendants has further relied upon decision of Hon'ble Supreme Court reported in AIR 2015 SCC 3364 in case of L.C. Hanumathappa (since dead) by his Lrs' Vs H.B. Shivakumar, wherein it is held that, there can be no right to sue until there is an accrual of right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.
43. The learned counsel for defendants has further relied upon decision of Hon'ble Supreme Court reported in AIR 2019 SC 3113 in case of Sopanrao and another V/s Syed Mehamood and others wherein it is held that, in a suit for possession based on title the plaintiff is bound to prove his title and pray for a declaration that he is owner of property. Even if case of defendants taken at highest possession of defendant become adverse to plaintiff when possession is handed over to defendant.
44. It is not in dispute when documents as per Ex.P.1 and Ex.P.6 were executed, plaintiff was in USA. There is documents on record to show plaintiff has 37 O.S.No.26116/2017 transferred funds for purchase of these suit properties. The defendants have not placed any material on record to show immediately after execution of sale deeds or within reasonable time they have shown those documents to plaintiff who has also contributed amount for purchase of properties and thereby positively and in clear terms have denied right of plaintiff in those properties.
45. Fact to be noted here, within short period from date of death of Srinivas Murthy, defendant No.1 executed gift deed in favour of defendant No.2 in respect of suit 'A' schedule property. The defendants have not proved execution of declaration as per Ex.P.35 said to have been executed by plaintiff. There are material on record to show in respect of said documents already criminal proceedings initiated. In Ex.P.35 it is mentioned, the plaintiff declared suit 'A' schedule property is absolute property of his father and mother and they are at liberty to deal with property as they decide. If these facts of non informing about sale deeds got executed in the names of parents only and not informing the plaintiff about execution of gift deed and 38 O.S.No.26116/2017 further non proving of declaration as per Ex.P.35 alleged to have been executed by plaintiff are read together, it is only the plaintiff after enquiry in Sub- Registrar Office come to know about execution of sale deeds as per Ex.P.1 and Ex. P.6. After coming to know about said documents, within time as prescribed under law of limitation, the plaintiff has filed present suit against defendants. In appreciation all these facts the principles laid down in decisions relied by the learned counsel for the defendants not aptly applicable to the facts and circumstance of case on hand.
46. As already discussed, the defendant No.2 herself has admitted, she had agreed to repay amount received by plaintiff within 10 years. The defendant No.2 has purchased property in her favour from the amount transferred by plaintiff on 11.12.2012. If same is considered, the defendant No.2 has agreed to repay the amount within 2022. As such, claim of plaintiff for recovery of amount from defendant No.2 is also not barred by law of limitation. Hence, I answer Issue No.6 in the negative.
39 O.S.No.26116/2017
47. ISSUE NO.9 :- It is specific contention of plaintiff that, gift deed dated 03.12.2015 in respect of suit 'A' schedule property by defendant No.1 in favour of defendant No.2 without any authority and same is not binding on him. Certified copy of gift deed dated 03.12.2015 executed by defendant No.1 in favour of defendant No.2 in respect of suit 'A' schedule property has been produced as per Ex.P.2 before the court.
48. It is mentioned in Gift deed that, donor defendant No.1 is absolute owner and in possession of schedule property. It is contended by defendant No.1 in her written statement and same is deposed by her in her examination in chief that, after death of her husband defendant No.1 become sole and absolute owner of suit 'A' schedule property.
49. As already discussed above, it is the plaintiff who is also joint or co-owner of suit 'A' schedule property, who has contributed major sale consideration amount for purchase of suit 'A' schedule property. Once, suit 'A' schedule property is joint property of plaintiff and defendant No.1 and already another joint 40 O.S.No.26116/2017 owner Srinviasa Murthy is no more, the defendant No.1 without consent of plaintiff cannot execute gift deed in respect of suit 'A' schedule property in favour defendant No.2. It is not case of defendants that, both plaintiff and defendant No.1 being joint owners of property have jointly executed gift deed to defendant N.2. It is settled law that, o-owner whose share in joint property remained undetermined he cannot transfer entire 'A' schedule property to defendant No.2 by way of gift. As such, Ex.P.2 gift deed executed by defendant no.1 in favour of defendant No.2 without approval or consent of plaintiff who is joint owner of property is not sustainable in the eyes of law. The said gift deed not at all binding on the plaintiff. Hence, I answer Issue No.9 in the affirmative.
50. ADDITIONAL ISSUE NO.1 DATED 24.09.2021:- It is contention of plaintiff that, the defendant No.1 and 2 are in unlawful possession of suit 'A' and 'B' schedule properties. As already it is held, name of defendant No.1 shown as purchaser of properties in Ex.P.1 and P.6 sale deeds. Even if it is readily accepted, defendant No.2 has not contributed 41 O.S.No.26116/2017 any sale consideration amount for purchase of these properties as she fails to establish she contributed her Stridhana for purchase of property, the defendant No.2 become joint owner of suit 'A' and 'B' schedule properties.
51. As already discussed, the defendant No.1 has no complete authority or absolute right to execute gift deed in respect of suit 'A' schedule property in favour of defendant No.2 without approval or consent of joint owner of property who is plaintiff. Under these circumstance, though there are recitals in registered gift deed as per Ex.P.2 that, defendant No.1 handed over possession of property to defendant No.2, based on such recital and documents, defendant No.2 cannot claim she is in possession and enjoyment of suit 'A' schedule property. When document as per Ex.P.2 is not tenable in the eyes of the law, question of possession of defendant No.2 over said property as unlawful possession does not arise. The defendant No.1 being joint owner of suit 'A' and 'B' schedule properties, she can very well maintain her joint possession over suit 'A' and 'B' schedule properties along with plaintiff. Hence, 42 O.S.No.26116/2017 I answer Additional Issue No.1 dated 24.09.2021 in negative.
52. ADDITIONAL ISSUE Nos.2 TO 4 DATED 24.09.2021:- As these issues are inter-related to each other and involves common appreciation of facts and evidence on record, findings on one issue are bearing on other issues, in order to avoid repetition of facts and for convenience sake, all issues are taken together for common discussion.
53. The plaintiff has specifically contended, the defendants are collecting rents from tenements of suit 'A' and 'B' schedule properties. As such he is entitled for mesne profits arising out of rents and profits from these properties. It is to be noted here, in the plaint, it is mentioned, suit 'A' schedule property is multi storied building. Suit 'B' schedule property is apartment in Platinum City, Yashwanthpur, Bengaluru.
54. It is not case of defendants and same is not contended by them, they have not let out suit properties to the tenants. The D.W.1 in her cross-examination has deposed, the tenants of suit 'B' schedule property already vacated the suit property. It is further stated by 43 O.S.No.26116/2017 D.W.1 that, till 2019 rent amount transferred to her account. In further cross-examination, she has pleaded ignorance about rate of rent amounts in respect of suit properties. Ex.P.43 is rent agreement produced in respect of suit 'B' schedule property situated at Yashwanthpur. The name of one Mahadeva shown as tenant of property and monthly rent amount shown as Rs.18,000/-. The D.W.1 in her cross-examination has deposed, she entered into rent agreement with Mahadev as per Ex.P.43. It was suggested by learned counsel for plaintiff to the defendant No.1 in her cross examination that, said document is created by defendants for the suit. The D.W.1 has further stated, the rent amount transferred to her account were already given to defendant No.2. In view of these facts, there is no clear material and evidence on record to show what is exact rent amount from suit properties and when these suit properties were given on rent to the tenants.
55. On proper perusal of evidence of D.W.1, it is proved the schedule properties were let out to the tenements on rent basis and also it is proved, the defendants are collecting rents pertaining to suit 44 O.S.No.26116/2017 properties. As there is lack of evidence to show, when properties were let out on rent and what is actual rent amount being received by these defendants, it is just and necessary to hold separate enquiry with regard to mesne profits as prayed by the plaintiff in the plaint. Hence, I answer Additional Issues No.2 and 3 dated 24.09.2021 in the affirmative and Additional Issue No.4 dated 24.09.2021 in the affirmative subject to enquiry on mesne profits.
56. ADDITIONAL ISSUE No.1 DATED 11.09.2023 :- It is specific contention of defendants and same is argued on behalf of learned counsel for defendants that, very suit filed by plaintiff in present form is not at all maintainable. It is further argued that, the plaintiff has sought several relief against defendants No.1 and 2 on different facts. The composite suit filed by plaintiff for multiple causes of actions and there are different prayers against defendants No.1 and 2 on different cause of action. As such, very suit filed by plaintiff is not maintainable as per provisions of Order II Rule 3 of CPC.
45 O.S.No.26116/2017
57. The learned counsel for defendants, in support of his arguments has relied upon decision of Hon'ble Supreme Court reported in AIR 2008 SCC 3123 in case of Dabur India Limited Vs. K.R. Industries, wherein it is held that, "the court has the jurisdiction and power to adjudicate, it will necessarily have the incidental power therefor. It may, however, be different if the court may have exercised a power which is not provided for as a supplemental proceeding. Thus, whereas an incidental power is incidental power is inherent in the court, a supplemental power may also be exercised, keeping in view the ultimate relief which may be granted by it."
58. The learned counsel for defendants has further relied upon decision of Hon'ble Supreme Court in ILR 2009 (KAR) 4331 in case of S.R. Venkatareddy Vs. K.S. Shariff and Others, wherein it is held "composite suit against defendants is clearly barred under Order II Rule 3 of CPC and joinder of several cause of action against several defendants in this composite suit will embarrass and it will definitely delay the trial." 46 O.S.No.26116/2017
59. On the other hand, the learned counsel for the plaintiff has relied upon decision reported in (1999) 3 SCC 457 in case of Ishwar Bhai Patel V/s Behera and another, wherein it is observed that, basic principle is that, person made party to a suit when there is cause of action against him, hence when causes of action joined, parties are also joined.
60. The learned counsel for the plaintiff has further relied upon decision reported in 1999 SCC Online Kar 26 in case of Bharat Petroleum Corporation Ltd Bangalore V/s B.S.Sridhara Murthy and another, wherein it is held that, as per Order 2 Rule 7 of CPC, all objections on the ground of mis- joinder of causes of action should be taken up at earliest possible opportunity and in all cases where issues are settled, at or before such settlement, unless ground of objections subsequently arisen and any such objection not so taken shall be deemed to have been waived.
61. As per Order II Rule 3 of CPC, a person entitled to more than one relief in respect of same cause of action may suit for all or any of such relief, but if he 47 O.S.No.26116/2017 omits, accept leave of the court to she for all relief, he sue not after words sue for any relief so omits.
62. Herein the case, no doubt it is true, in respect different reliefs the plaintiff has filed suit against defendants No.1 and 2, but he plaintiff in para 21 of his plaint has specifically stated, in the month of June 2017 he obtained documents pertained to suit properties, then only he come to know that, defendants No.1 and 2 have cheated and created documents. Thereafter, plaintiff issued notice to the defendants on 29.06.2017. Looking into entire pleadings it is mentioned, the plaintiff after coming to know about fraud played by defendants and they have created documents, he filed present suit. It is to be noted here, the defendant No.2 herself has admitted, she received amount from plaintiff agreeing to repay to him within 10 years. Under these circumstances, when plaintiff thought to file suit against defendants for relief in respect of suit 'A' and 'B' schedule properties, definitely cause of action to recover amount from defendant No.2 as agreed by her also arose to him. As such, composite suit filed by plaintiff against defendants No.1 and 2 for different reliefs is 48 O.S.No.26116/2017 definitely maintainable. The principles laid down in decision relied by counsel for defendants as referred above not aptly applicable to facts and circumstances of case on hand. Suit of the plaintiff is very much maintainable against defendants looking into cause of action and prayer sought against them in the plaint. Hence, I answer Additional Issue No.1 dated 11.09.2023 in the affirmative.
63. ADDITIONAL ISSUE NO.2 DATED 11.09.2023 :- The defendants have contended, plaintiff is not properly valued subject matter of suit and thereby paid proper court fees. The plaintiff has valued subject matter of 'A' schedule property at Rs.5,83,83,321/- and having sought for declaratory relief and consequential relief of possession and injunction, he valued subject matter of 'A' schedule as provided under Section 24 (a) of Karnataka Court Fees and Suits Valuation Act. Admittedly, the plaintiff is not party to the gift deed. He cannot pay court fees on market value of suit 'A' schedule property for seeking cancellation of gift deed. In respect of suit 'B' 49 O.S.No.26116/2017 schedule property, the valuation of subject matter shown as Rs.44,05,590/- and having sought for declaration and injunction in respect said property, the plaintiff paid court fees as provided under Section 24 of Karnataka Court fees and suits valuation Act.
64. In respect of mesne profits the plaintiff ought to have paid court fees under Section 42 of Karnataka Court Fees and Valuation Act. No doubt it is true, proper provisions for court fees in respect of the mense profits not mentioned, but amount claimed as mesne profits by the plaintiff is included in valuation slip and accordingly plaintiff has paid court fees.
65. The defendants in order to prove their contention that, the valuation of subject matter of suit is more than value shown in valuation slip not placed any material on record. Only it is suggested during cross-examination of P.W.1 that, plaintiff has not properly shown market value of subject matter of suit. Under these circumstances, the valuation shown by plaintiff in the plaint has to be considered as correct 50 O.S.No.26116/2017 and proper valuation. As such, I answer Additional Issue No.2 dated 11.09.2023 in the affirmative.
66. ADDITIONAL ISSUE NO.3 DATED 11.09.2023 :- The defendants have contended, suit of plaintiff is bad for non-joinder of proper and mis-joinder of parties. The plaintiff has shown, defendants No.3 and 4 who are tenants of the suit properties. The plaintiff having sought for possession of suit properties from defendants has rightly impleaded the tenants as parties to the suit. As such contention of defendants that, suit is bad for non-joinder of parties is not sustainable.
67. It is not case of defendants that, other than these defendants some other family members or any 3 rd party got right and interest in suit 'A' and 'B' schedule properties. Such being the facts, the plaintiff having claimed declaration, possession and injunction over suit properties and also sought for mense profits against defendant No.2 has made defendants No.1 and 2 as primary parties to the suit. As such, suit is not bad for non-joinder of proper and mis-joinder of parties. Hence, 51 O.S.No.26116/2017 I answer Additional Issue No.3 dated 11.09.2023 in the negative.
68. ADDITIONAL ISSUE NO.4 DATED 11.09.2023 :- The defendants have contended there is no cause of action for plaintiff to file present suit. As already discussed, there is sufficient material by way of documentary evidence to show, the plaintiff has contributed or transferred major funds to the account of his father for purchase of suit 'A' and 'B' schedule properties. The suit 'A' schedule property purchased in the name of parents of plaintiff. In sale deed in respect of suit 'B' schedule property name of plaintiff shown as purchaser. The defendants have denied and disputed right and interest plaintiff over suit properties. Further, without consent and permission of plaintiff, defendant No.1 behind the back of plaintiff had executed gift deed in respect of suit 'A' schedule property in favour of defendant No.2. By doing so, the defendants No.1 and 2 have denied right and interest of plaintiff in suit 'A' property. Further, without there being any material to show defendant No.2 has repaid all amount to plaintiff obtained by her for purchase of property, she falsely 52 O.S.No.26116/2017 contended, said amount was already repaid. Taking into consideration of all these fact, the contention of defendants that, there is no cause of action for the plaintiff to file present suit falls to the ground. The plaintiff has got clear cause of action against the defendants to file present suit seeking reliefs. Hence, I answer Additional Issue No.4 dated 11.09.2023 in the affirmative.
69. ISSUE NO.10 :- As already discussed above, the plaintiff has sufficiently proved by way of documentary evidence that, he has contributed funds to the account of his father for purchase of suit 'A' and 'B' schedule properties. Admittedly, father of plaintiff Srinivasa Murthy whose name shown in sale deeds pertaining to suit 'A' and 'B' schedule properties is no more. Even though, defendant No.1 failed to establish she has contributed to her stridhana for purchase of property, as her name shown in sale deeds of suit properties as purchasers, she become joint owner of suit schedule properties along with plaintiff herein. As such, plaintiff cannot claim absolute owner over suit 'A' 53 O.S.No.26116/2017 and 'B' schedule properties. The plaintiff being joint or co-owner of suit 'A' and 'B' schedule properties can claim his joint ownership and joint possession and enjoyment over suit properties along with defendant No.1.
70. As it is held, suit 'A' schedule property is joint property of plaintiff and defendant No.1, the defendant No.1 has no absolute authority or right to gift suit 'A' schedule property in favour of defendant No.2 by virtue of gift deed dated 03.12.2015 as per Ex.P.2 and same is not legal and valid document, through which defendant No.2 can claim right and possession over suit 'A' schedule property.
71. As plaintiff is joint or co-owner of suit properties, he can very well have possession of original title deeds of suit 'A' and 'B' schedule properties along with defendant No.1 and also he has got joint possession and enjoyment over suit 'A' and 'B' schedule properties along with defendant No.1. The defendant No.1 who claiming to be absolute owner of suit 'A' schedule property having failed to prove the same she is 54 O.S.No.26116/2017 restrained by way of permanent injunction from interfering with joint possession and enjoyment of plaintiff over suit schedule properties.
72. As already discussed, there is no sufficient material or evidence on record to decide mesne profits in respect of rents of suit properties, as such there shall be separate enquiry on mesne profits as per provisions of order 22 Rule 12 of CPC. The defendant No.2 having failed to establish she has repaid amount received by her from plaintiff for purchase of property, she is under legal obligation to pay said amount along with reasonable interest thereon to the plaintiff.
73. It is specific contention of the learned counsel for defendants that, plaintiff in his examination in chief has mentioned many facts which are not pleaded in the plaint. No document or evidence adduced in absence of pleadings. On this proposition of law the learned counsel for the defendants has relied upon decision of Hon'ble Supreme Court reported in AIR 2015 SC 3796 in case of Nandakishore Lalbhai Mehta V/s New Era Fabrics Ltd and others, wherein it is held that, no 55 O.S.No.26116/2017 evidence or document can be adduced in evidence in absence of pleadings. Such material do not constitute legally acceptable evidence.
74. It is to be noted here, may be some facts are mentioned in examination-in- chief of PW1, which are not pleaded in the pleadings, even excluding such evidence on record and looking into other material and evidence on record the plaintiff has sufficiently proved that, he is entitle for the reliefs as mentioned above. Hence, I answer issue No.10 partly in the affirmative.
ISSUES No.11 :- In view of the above said findings on Issues No.1 to 10, Addl.Issue No.1 to 4 dated 24.09.2021 and additional issues No.1 to 4 dated 11.09.2023, I proceed to pass the following:-
ORDER The suit of the plaintiff is hereby partly decreed with costs.
It is declared that, the plaintiff is joint or co-owner of suit 'A' and 'B' schedule properties as mentioned in the schedule 56 O.S.No.26116/2017 to the plaint along with defendant No.1 and plaintiff has got joint possession and enjoyment over suit schedule mentioned properties along with defendant No.1.
It is declared that, Gift Deed dated 03.12.2015 as per Ex.P.2 executed by defendant No.1 in favour of defendant No.2 in respect of suit 'A' schedule property is void and not valid document, same is not binding on plaintiff.
The defendant No.1, her men, agents or anybody claiming through her are hereby restrained by way of permanent injunction from interfering with joint possession and enjoyment of plaintiff over suit 'A' and 'B' schedule properties.
The defendant No.2 has to repay an amount of Rs.25,98,934/- to the plaintiff along with interest at the rate of 57 O.S.No.26116/2017 6% per annum from 11.12.2008, till its actual realization.
The defendant No.2 has to repay an amount to the plaintiff as mentioned above within 2 months from date of decree, failing which, the plaintiff is at liberty to recover said amount from defendant No.2 by following due procedure known to law.
There shall be separate enquiry in respect of mesne profits as prayed by plaintiff in suit as per provisions of Order XX Rule 12 of CPC.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer, typed & computerized by her, corrected and signed by me and then pronounced in the open Court on this the 14th day of November, 2024).
(BALAPPA APPANNA JARAGU) XXVIII Additional City Civil and Sessions Judge, Mayohall, Bengaluru. 58 O.S.No.26116/2017 ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:-
Examined on:
P.W.1 : Srikanth Ghantasala 23-11-2021
2. LIST OF DOCUMENTS MARKED FOR THE PLAINTIFF:-
Ex.P.1 : Certified copy of sale deed dated 23.10.2000.
Ex.P.2 : Certified copy of Gift deed dated
03.12.2015.
Exs.P.3 : 3 Encumbrance certificate.
to P.5 Ex.P.6 : Certified copies of sale deed dated and P.7 11.12.2008.
Exs.P.8 : Legal Notices.
to P.11 Ex.P.12 : Postal receipts.
and P.13 Exs.P.14 : Bank Statements.
to P.17 Ex.P.18 : Letter from PNC Bank.
Exs.P.19 : Letter from HSBC Bank.
to P.20 Ex.P.21 : Letter from US postal service. Exs.P.22 : 4 original cheques.
to 25 Ex.P.26 : Certified copy of Crl.Mis.No.291/2019. Ex.P.27 : office copy of objection in Crl.Misc.291/2019.
Ex.P.28 : Certified copy of order sheet in Crl.Misc.291/2019.
Ex.P.30 : Statement of Final settlement- Employees. 59 O.S.No.26116/2017 Exs.P.31 : E-mail along with 65(b) statement.
to P.33
Ex.P.34 : Passport.
Ex.P.35 : Certified copy of Declaration dated
13.06.2012.
Ex.P.35(a) : Signature.
Ex.P.36 : Certified copy of order in
Crl.P.No.5743/2020.
Ex.P.37 : Summoned documents relating to bank account of plaintiff's father Srinivasa Murthy.
Ex.P.38 : Evidence of Leelavathi before Queen City Court.
Exs.P.39 : Signatures of defendant No.1.
and P.40
Ex.P.41 : Certified copy of gift deed.
Ex.P.42 : Letter dated 15.12.2018.
Ex.P.43 : Rental agreement dated 06.02.2018.
Ex.P.44 : Objection of the defendant No.1 and 2 to
IA filed under Order XII Rule 8 of CPC.
Ex.P.45 : E-mail.
Ex.P.46 : Certified copy of sale deed dated
11.12.2008.
Ex.P.47 : Release deed dated 05.07.2017.
Ex.P.48 : Sale deed dated 25.07.2018.
Ex.P.49 : Evidence of defendant No.1 in
Crl.Misc.No.291/2019.
Ex.P.50 : Order in Crl.Misc.No.291/2019.
Exs.P.51 : Photographs.
to P.60.
3.LIST OF WITNESSES EXAMINED FOR THE DEFENDANT:-
Examined on:
D.W.1 : Smt. G. Vijayalakshmi 21-12-2023 60 O.S.No.26116/2017
4.LIST OF DOCUMENTS MARKED FOR THE DEFENDANT:-
Ex.D.1 : FIR.
Ex.D.1(a) : Original Gift deed dated 03.12.2015.
Ex.D.2 : Complaint.
Ex.D.2(a) : Certified copy of the petition in Crl.R.P.No.201/2023.
Ex.D.3 : Certified copy of the order sheet and plaintiff in O.S.26633/2018.
Ex.D.4 : Certified copy of the B-report in Crime No.335/2017.
Ex.D.5 : Certified copy of the B-report in Crime No.52/2020.
Ex.D.6 : Statement of account.
Ex.D.7 : Certified copy of registered sale deed dated
14.11.2002.
Exs.D.8 : Encumbrance certificates.
and D.9
Exs.D.10 : Tax Paid receipts.
to D.13
Ex.D.14 : Certified copy of sale deed dated 17.02.2000.
Ex.D.15 : Certified copy of Discharge Deed dated 24.11.1999.
Ex.D.16 : Certified copy of Discharge Deed dated 24.11.1999.
(BALAPPA APPANNA JARAGU) XXVIII Additional City Civil and Sessions Judge, Mayohall, Bengaluru.