Bangalore District Court
Smt. N. Yeshodamma vs Mrs. M. Champakavathi on 20 February, 2020
C.R.P.67 Govt. of Karnataka
Form No.9(Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XII ADDL. CITY CIVIL JUDGE, AT
BENGALURU
Dated this the 20th day of February, 2020.
PRESENT: SRI. SATHISHA L.P., B.A.,LL.B.,
XII ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH.No.27), BENGALURU
O.S.No.4682/2012
PLAINTIFFS : 1. Smt. N. Yeshodamma,
W/o late G. Rangaswamy,
Aged about 58 years
Residing at No.104, 33rd Cross,
Narasimhaswamy Badavane,
Nandini Layout,
Bengaluru-560 096.
2. Smt. Munirathna R,
D/o late G. Rangaswamy
W/o N.R. Ranganath,
Aged about 38 years
Residing at No.10, 3rd Floor
3rd Cross, Pipeline Road,
Yeshawanthpura Circle
Bengaluru 5670 022
3. Smt. Jamuna R.
W/o Krishnamurthy T.N.
2 O.S.No.4682/2012
D/o Late G. Rangaswamy
Aged about 35 years
Residing at Deccan Hospital Road
Ashwini Badawane,
Chintamani Town,
Chikkaballapur District
4. Smt. Hemalatha R.
W/o Harikrishna P
D/o Late G. Rangaswamy
Aged about 34 years
Residing at No.7/8, 1st Cross,
2ndMain, Jai Maruthi Nagar,
Nandini Layout,
Bengaluru-560 096
5. Smt. Mamatha R,
W/o Nagaraja R
D/o Late G. Rangaswamy
Aged about 32 years
Residing at No.16/17,
Thunganagar Main Road,
Vishwaneedam Post,
Bengaluru 560 091
6. Ms. Geetha R,
D/o Late G. Rangaswamy
Aged about 29 years
Residing at No.104,
33rd Main Road
Nandini Layout,
Bengaluru-560 096.
7. Ms. Shwetha R
D/o Late G. Rangaswamy
Aged about 27 years
Residing at No.104,
3 O.S.No.4682/2012
33rd Main Road
Nandini Layout,
Bengaluru-560 096.
8. Mr. Mohan Kumar R.
S/ o Late G. Rangaswamy
Aged about 26 years
Residing at No.104,
33rd Main Road
Nandini Layout,
Bengaluru-560 096.
9. Mr. Manjush R.
S/o Late G. Rangaswamy
Aged about 24 years
Residing at No.104,
33rd Main Road
Nandini Layout,
Bengaluru-560 096.
The plaintiffs No.2 to 9 are
Represented by their
General Power of Attorney
Holder Smt. N. Yeshodamma,
i.e., the plaintiff No.1.
(By Sri Nettar Govinda Bhat,
Advocate)
VS.
DEFENDANTS : 1. Mrs. M. Champakavathi,
D/o Sri Munivenkatappa,
Aged about 45 years
r/at: 91/27, 7th Cross,
9th Main Road,
Dwarakanagar,
Hosakere Halli,
4 O.S.No.4682/2012
Banashankari 3rd Stage,
Bengaluru 560085
2. Sri Kumarawamy,
S/o Smt. M. Champakavathi,
Aged about 26 years
r/at: 91/27, 7th Cross,
9th Main Road,
Dwarakanagar,
Hosakere Halli,
Banashankari 3rd Stage,
Bengaluru 560085
3. Suraksha Medical,
Mamatha Complex
4. Harsha Ladies Tailors,
Mamatha Complex
5. Raja Ram Fancy Gift Centre
Mamatha Complex
6. Mahaveer Electricals,
Mamatha Complex
7. Sri Guru Enterprises
Mamatha Complex
8. Pravin Kumar Textiles,
Mamatha Complex
9. Muthuraj Arts,
Mamatha Complex
10. Spoorthi Music Corner
Mamatha Complex
5 O.S.No.4682/2012
11 Naveen Enterprises,
Mamatha Complex
12. Poornima Enterprises,
Mamatha Complex
Defendants No.3 to 12 at
No.9, 22nd Main Road,
Nagendra Block,
S.B.M. Colony,
Banashankari 2nd Stage,
Bengaluru-560 050.
(D.1 & 2 by Sri TSR, Advocate
D.3 to 6, 8 & 9 by Sri Divakar, Advocate
D.7, 10 & 11 by Sri AAK
D.12- Suit dismissed.)
Date of Institution of the suit : 02.07.2012
Nature of the suit : Suit for Declaration and
Injunction
Date of commencement of : 06.12.2016
recording of the evidence
Date on which the Judgment was : 20.02.2020
pronounced
Total Duration Years Months Days
07 07 18
(SATHISHA L.P.)
XII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
6 O.S.No.4682/2012
JUDGMENT
This suit is filed by the plaintiffs to cancel the gift deed dated 28.01.2012 executed by late G. Rangaswamy in favour of defendants No.1 and 2 which is registered as document No.CMP- 1-03508-2011-12, stored in CD No.CMPD39, in the office of Sub- Registrar, Chamarajpet, Bengaluru, to declare the marriage dated 01.06.1985 between the defendant No.1 and late Rangaswamy is illegal and void and for permanent injunction to restrain the defendants No.1 and 2, their agents, servants or anybody claming through or under them from selling, mortgaging, leasing or in any way alienating the suit schedule property in favour of third party, costs and such other reliefs.
2. The brief facts of the plaintiffs' case is that plaintiff No.1 is daughter of late Sri A.Narayana and Smt. Puttamma. Plaintiff No.1 got married to late G. Rangaswamy on 14.03.1971 and six daughters and two sons, i.e., plaintiff No.2 to 7 and plaintiff No.8 and 9 were born out of the said marriage. 7 O.S.No.4682/2012
Father of the plaintiff No.1 was a head master in Doddaballapura Taluk and he retired in the year 1983. The family of plaintiff No.1 owned 5 acres of land in Thimmasandra Village, Doddaballapura Taluk, Madure Hobli, Kannamangala Post, Bengaluru Rural District. First plaintiff's father along with his wife also were cultivating the said agricultural lands owned by them. Parents of plaintiff No.1 also were doing money lending business ad they used to lend money to the villagers on interest and used to earn huge sums of money from this business. Late Sri Narayana was also a priest and he used to get income from gove, Muzurai Department.
Late G. Rangaswamy, i.e., husband of plaintiff No.1 did not have any income to meet the expenses for running the family. The plaintiff No.1 with the help of her parents, used to take care of the expenses of the family. The parents of plaintiff No.1 used to support her and her family financially. Late G. Rangaswamy was working in ITI, Bengaluru when he got marred. He used to get a monthly salary of Rs.200/- to Rs.300/-. As late G. 8 O.S.No.4682/2012 Rangaswamy was irregular in going to his work, he lost his job in ITI in the year 1974. He did not have any other source of income to take care f the family. Late G. Rangaswamy used to deal with all the money which the plaintiff No.1 used to get from her parents. Plaintiff No.1 never had any objection for the same, as her husband was never negligent in spending the money he used to deal with. Even the parents of plaintiff No.1 who used to send the money never had any objections as their own son-in-law was handling the money sent by them. Parents of plaintiff No.1 were in very good relationship with their son-in-law, late G. Rangaswamy.
Parents of plaintiff No.1 also encouraged late G. Rangaswamy to purchase immovable properties in his own name out of the money sent by them as he was their son-in-law. The parents of plaintiff No.1 had a soft corner and more concern for plaintiff No.1 and her husband late G. Rangaswamy, as he did not have a job. The brothers of the plaintiff No.1 were also well 9 O.S.No.4682/2012 settled and independently leading their lives without depending upon their parents.
The parents of plaintiff No.1 had faith in their son-in-law and they were purchasing the immovable properties from their funds in the name of G. Rangaswamy for the benefit of plaintiff No.1 and her family. None of the properties standing in the name of G. Rangaswamy are his self acquired properties. The immovable property situated at new Municipal No.1, (Old No.22/4-9) 22nd Main Road, Nagendra Block, Banashankari 2nd Stage, Bengaluru-50, the suit schedule property is also property purchased out of the funds belonging to the parents of plaintiff No.1. The schedule property is not self acquired property of late G. Rangaswamy and the same is purchased out of the funds belonging to the parents of plaintiff No.1. When plaintiff No.1 was pregnant with her third child, she was at her home town in Thimmasandra Village, Doddaballapura Taluk with her parents. late G. Rangaswamy through T.N. Chandrashekaraiah, the brother of plaintiff No.1 had sent a letter to plaintiff No.1 asking her to 10 O.S.No.4682/2012 send a sum of Rs.12,000/- through T.N. Chandrashekaraiah. In the said letter also late G. Rangaswamy has clearly stated that he was going to register the property in his name as plaintiff No.1 was not able to come as she was pregnant with her third child. Plaintiff No.4 was born on 20.11.1978. Schedule property was purchased on 07.07.1978 when the plaintiff No.1 was pregnant with her third daughter, i.e., plaintiff No.4 herein. Plaintiff No.4 was born on 20.11.1978. It is evident that late G. Rangaswamy utilised the money sent by plaintiff No.1 to purchase the schedule property as the letter sent by late G. Rangaswamy was when plaintiff No.1 was pregnant with her third child during the year 1978 and the property also purchased in the year 1978. The building constructed on the schedule property was also with the funds of the parents of plaintiff No.1 and also with the help of funds which late G. Rangaswamy got from his parents during 1987 when parents of late G. Rangaswamy sold their land in Sy.No.136/1, situated in Bhukkasagara Village, Jigani Hobl, Anekal Taluk. In fact the complex is names as "Mamatha Complex", which is named after his fourth daughter, i.e., plaintiff No.5 11 O.S.No.4682/2012 herein. The schedule property was purchased on 07.07.1978 in the name of late G. Rangaswamy. The funds for purchasing the schedule property was given by the parents of plaintiff No.1 only, as late G. Rangaswamy was not earning any money as he had lost his job in ITI in the year 1974 itself. Defendants No.3 to 12 are the tenants in the schedule property. Late G. Rangaswamy used to personally deal with all the financial transaction of plaintiff No.1. In fact he used to come to the home town of plaintiff No.1 and collect money from the father of plaintiff No.1 and buy properties in his own name in Bengaluru and accordingly the schedule property was also purchased out of the funds given to plaintiff No.1 by her parents.
Mother of defendant No.1 i.e., Smt. Gowramma used to work as a housemaid in the house of plaintiff No.1. Likewise defendant No.1 also used to accompany her mother to help her n the household work. This was the time when the defendant No.1 under the instructions of her mother started to mislead the husband of plaintiff No.1 late G. Rangaswamy and planned to 12 O.S.No.4682/2012 tear apart the family of plaintiff No.1. The defendant No.1 was successful in her plan in poisoning the mind of first plaintiff's husband and Rangaswamy and influenced him to such an extent that she tore apart plaintiffs' family. At that time, late G. Rangaswamy hypothecation deed started ignoring plaintiff No.1 as she had begotten only daughters and not any son. Because of this fact, defendant No.1 also took advantage and influenced Rangaswamy to such an extent hat he started neglecting plaintiff No1 and also started staying with defendant No.1. Late G. Rangaswamy was totally under the control of defendant No.1 and reduced spending time with plaintiff No.1 ad her family. Though late G. Rangaswamy reduced spending time with the plaintiffs, he used to visit the plaintiffs regularly and showed he was concerned and was taking care of them.
When plaintiff No.1 was 6 months pregnant with her sixth children during the year 1985, defendant No.1 herein who is not related to the plaintiffs family, poisoned the mind of late G. Rangaswamy against the plaintiffs. At that time defendant No.1 13 O.S.No.4682/2012 was about 19 years old and late G. Rangaswamy was 40 years old. The only intention of defendant No.1 to enter the life of G. Rangaswamy was to knock off the properties belonging to the plaintiffs' family. Defendant No.1 and her mother were aware that plaintiff No.1 was a very wealthy person having come from a rich family. Late G. Rangaswamy was under complete control of defendant No.1 till his death. Moreover plaintiff No.1 is very innocent having come from village background. The defendant underestimated the plaintiff No.1 and had an impression thatp1 was not an outgoing person. As plaintiff No.1 used to be regnant frequently, she needed some one to help to take care of household work and this is how defendant No.1 and her mother entered the family of plaintiff No.1 and slowly started influencing late G. Rangaswamy and poisoning his mind. Late G. Rangaswamy even used to tell plaintiff No.1 hat he s aware that he has six daughters and two sons and he will se that he will not dispose of the plaintiff No.1's property and requested plaintiff No.1 not to take any drastic steps against him. Plaintiff No.1 having full faith in her husband G. Rangaswamy listened to him. 14 O.S.No.4682/2012
Late G. Rangaswamy had love and affection and more concern towards his wife i.e., plaintiff No.1 herein and also towards his children, i.e., plaintiff No.2 to 9. He always used to tell plaintiff No.1 to be careful and cautious of defendant No.1 as she might harm plaintiffs and she could go to any extent for the sake of knocking off the properties. There are instances where late G. Rangaswamy himself used to tell plaintiff No.1 to be careful of the false criminal cases that were being filed by defendant No.1 against plaintiff No.1. Sometime during the year 1999, late G. Rangaswamy had also written a letter to plaintiff No.1 sating that she had to be very cautious as the case is of criminal nature and also informed the plaintiff No.1 had to attend the Court without fail and also wrote in the same letter that plaintiff No.1 should not trust anybody. Late G. Rangaswamy in his letter has stated that plaintiff No.1 need not be scared of anybody and that after the examinations of the children were over, he would set right the difficulties. This clearly goes to show that late G. Rangaswamy also had no trust in defendant No.1 and was concerned for the plaintiffs' family. During the lifetime of Sri 15 O.S.No.4682/2012 Rangaswamy he used to time and again tell 1 that he will get rid of defendant No.1 and will set right the problems that have been caused because of defendant No.1 and will then lead a normal happy life with plaintiff No.1.
On 07.03.1997 late G. Rangaswamy was assaulted ad suffered a serious head injury and was treated at NIMHANS and Mallige Hospitals, Bengaluru. After the above said assault, defendant No.1 started taking advantage of hiSs health condition and started threatening him that he should transfer the properties to her name. Late Rangaswamy's health was deteriorating as day passed by. Due to immense pressure and harassment at the hands of defendant No.1, he was making hectic attempts to transfer the schedule property to the name of defendant No.1. Immediately plaintiff No.1 gave representation to BBMP requesting not to transfer khatha to the name of any other person. Taking advantage of injured condition of Rangaswamy, defendant No.1 successfully transferred some of 16 O.S.No.4682/2012 the properties to her name and her mother's name and to the name of defendant No.2.
Late G. Rangaswamy expired on 02.03.2012 after suffering illness for long time. Rangaswamy was admitted to Narayana Hrudayalaya and Fortis hospitals in the month of February 2012 and he was being treated for various ailments. His health had completely deteriorated for more than one year before his death. He used to regularly visit hospitals for various treatments. Late G. Rangaswamy had become a puppet in the hands of defendant No.1. Defendant No.1 never allowed plaintiff No.1 to even see her husband when he was ill. This made the plaintiff No.1 suspicious under such circumstances the defendant No.1 would knock off the schedule property standing in the name of G. Rangaswamy. From the date of admitting Rangaswamy to Fortis Hospital, defendant No.1 kept the information secret. When plaintiff No.1 tried to meet him through known people, hey informed that he was out of station.
17 O.S.No.4682/2012
It is further submitted that after having cardiac discomfort on 23.01.2012, late G. Rangaswamy visited Narayana Hrudayalaya Hospital on the same day and got a detailed check up and also got angiogram test done. This shows that late G. Rangaswamy was not physically ad mentally fit and he was not in deposing state. On 13.02.2012 said Rangaswamy was rushed to the hospital, as he was in critical condition and written statement admitted to Narayana Hrudayalaya Hospital and various tests and treatments were given to him. During the course of hospitalization, late G. Rangaswamy was under severe medication and he was consuming about 19 to 20 drugs a day.
It is further submitted that on 18.02.2012 inspite of deteriorating health condition of late G. Rangaswamy, in order to knock of the r, defendants herein forcibly got late G. Rangaswamy discharged from the hospital against the advice of the doctors. In fact in the discharge summary it is clearly stated that the said late G. Rangaswamy was diagnosed with thoracic and abdominal 18 O.S.No.4682/2012 aortic aneurysm and also systemic hypertension, and it is also mentioned that patient requested discharge and deferred surgery.
After the death of G.Rangaswamy, plaintiff No.1 was shocked to know tat there was alleged gift deed dated 28.01.2012 allegedly executed by late G. Rangaswamy in favour of defendants No.1 and 2 thereby gifting the schedule property to them. Moreover, there is also alleged Will dated 22.02.2012 allegedly executed by Rangaswamy. The alleged Will allegedly executed by late G. Rangaswamy is illegal and has been obtained by fraud, force and undue influence on late G. Rangaswamy. Subsequently the plaintiffs were even more shocked to know that defendant No.1 has illegally got married to late G. Rangaswamy on 01.06.1985. The marriage between defendant No.1 and Rangaswamy is illegal. The plaintiffs are the only persons who have right over the schedule property. Moreover the properties which are purchased in the name of late G. Rangaswamy were all before 1985 before the defendant No.1 came into contact with late G. Rangaswamy. As per the knowledge of the plaintiffs no 19 O.S.No.4682/2012 property was bought in Bengaluru after defendant No.1 came into the life of G. Rangaswamy. Defendant No.1 alleges that defendant No.2 is the son of late G. Rangaswamy. Late G. Rangaswamy had no right to execute the alleged gift deed in favour of defendants No.1 and 2, as the schedule property was purchased out of the funds of plaintiff No.1. Moreover the mental and physical condition of Rangaswamy was very weak and he was not in a position to act according to free will and volition. The said gift deed is obtained by defendants No.1 and 2 by practicing fraud and undue influence on late G. Rangaswamy. The said gift deed is void ab initio and liable to adjudged as such and cancelled. The alleged gift deed is executed just about one month before the death of late G. Rangaswamy. During that time his health condition had completely deteriorated and he was not in his senses. He was acting as per the direction of defendants No.1 and 2, as he was staying with them. Late G. Rangaswamy would not have executed the alleged gift deed, as he had concern for the family of the plaintiffs. Moreover late G. Rangaswamy had no right to gift the schedule property, as the 20 O.S.No.4682/2012 property belongs to the plaintiffs. Since the date of purchase, the plaintiffs along with late G. Rangaswamy were in possession of the schedule property and after the death of Rangaswamy, plaintiffs are in possession of the schedule property. The alleged gift deed dated 28.01.2012 was got executed by practicing fraud, undue influence and coercion on late G. Rangaswamy and he was completely under the control of defendants No.1 and 2. The alleged gift deed dated 28.01.2012 is illegal and a fraudulent document and not binding on the plaintiffs. The defendants No.1 and 2 who have perpetrated fraud upon the plaintiffs cannot be the beneficiaries of the very fraud committed by them. With these facts plaintiffs are before Court for the above said reliefs and seeks to decree the suit as prayed for.
3. After service of summons, defendants No.1 and 2 have appeared before Court and filed written statement denying and disputing the plaint averments and have contended that, suit of the plaintiffs is not maintainable and plaintiffs have not sought for any positive relief n their favour in respect of the suit schedule 21 O.S.No.4682/2012 property at the hands of this Hon'ble Court. In the absence of any positive relief, the relief No.1 sought by the plaintiffs in the plaint cannot be granted. The defendants have been in possession of the suit schedule property subsequent to 28.01.2012 and having not sought for the possession, suit in the present form is not maintainable. In the absence of declaration, the reliefs as sought by the plaintiffs cannot be granted. The declaration of marriage dated 01.06.1985 as illegal and void cannot be granted, since the plaintiffs have approached this Court to declare the marriage dated 01.06.1985 as null and void after the lapse of 27 years. More precisely it is barred by time. The plaintiffs had knowledge of the said marriage on 01.06.1985 itself. The third relief sought by the plaintiffs restraining the defendants from alienating the suit property also cannot be granted, since it is the property right of these defendants, that cannot be taken away by granting an order of injunction at the instance of the plaintiffs.
22 O.S.No.4682/2012
They further contended that suit schedule property was absolute r of Rangaswamy and he has acquired title to the same under the sale deed dated 07.07.1978 executed by Smt. Nagaveni Emmal in his favour. The said sale deed has been registered n the office of the Sub-Registrar, Basavanagudi. It was his absolute property. he on 28.01.2012 has gifted the same in favour of defendants No.1 and 2. After gifting the same, he assed away on 02.03.2012. Defendants No.1 and 2 are he widow and son of deceased Rangaswamy. Said Rangaswamy out of love and affection has executed the gift deed in their favour. Earlier to executing the gift deed, said Rangaswamy was living with the defendants No.1 and 2. It is the defendants No.1 and 2 who have performed the last rites of deceased Rangaswamy.
In fact defendant Rangaswamy on 22.02.2012 has executed a Will. In the Will he has clearly stated with whom he was living and what made him to live away from the plaintiffs and made him to live along with defendants No.1 and 2. Also in the very Will he has directed who should perform his last rights. The 23 O.S.No.4682/2012 very fact itself is sufficient to conclude that deceased Rangaswamy had no love and affection towards the plaintiffs. On the contrary, Rangaswamy was having love and affection towards defendants No.1 and 2 and that was reason what made him to execute the gift deed on 28.01.2012. In that view of the matter question of annulling the gift deed dated 28.01.2012 at the instance of the plaintiffs would never arise. Even otherwise it was absolute property of Rangaswamy and he had every right over the same and he has gifted the same in favour of these defendants, i.e., out of love and affection. There is nothing wrong in it. Rangaswamy was income tax assesse much prior to 1975 and he was working with ITI and getting handsome salary and apart from that he was also possessing immovable properties and deriving income and he was getting substantial income from the same and he out of his personal earnings has purchased the suit property for Rs.4,000/- on 07.07.1978 and nobody has contributed any money to him to purchase the same, even including the father of plaintiff No.1. Under these circumstances none of the reliefs sought by the plaintiffs cannot be granted. 24 O.S.No.4682/2012
It is further submitted that, there is a road on the south of the schedule property. Portion of the schedule property had gone for widening of the road, i.e. ,to an extent of East to West 10 feet and North to South full length. As on today the property would measure East to West 60 feet and North to South 30 feet and not 40 x 60 feet as stated by the plaintiffs. It s further submitted that these defendants who have been in lawful possession and enjoyment of the same, the khatha of the suit property also stands in their name and it is these defendants who have been remitting tax to the local authority. Earlier Rangaswamy was in exclusive possession of the same and he was remitting the tax to the suit schedule property.
4. While denying the averments of the para 3 of plaint, the defendants contended that they are not aware of Rangaswamy was marred to plaintiff No.1 on 14.03.1971 and remaining plaintiffs No.2 to 9 are children of late Rangaswamy and plaintiff No.1 and they have disputed the genealogical tree produced by the plaintiffs. While disputing the averments of para 25 O.S.No.4682/2012 No.4 of the plaint, defendants have contended that they are not aware that father of plaintiff No.1 was Head Master at Doddaballapura and he retired in the year 1983 and family of plaintiff No.1 owned 5 acres of land at Thimmasandra Village and father of plaintiff No.1 was doing money lending business and contended that plaintiff No.1 had come from a poor family and her parents had no income of any nature. While denying the averments of para No5, they have contended that Rangaswamy was getting handsome salary and apart from that he was also getting lot of income from immovable property which he owned and possessed. And with regard to para No.6 of the plaint averments, the averments of para No.6 are denied. So far as para No.7 of plaint is concerned, it is contended by the defendants that nobody has set any money to Rangaswamy to purchase the property and plaintiffs with the sole intention gain sympathy of his Court and to make believe that said property was purchased from the money of her parents have stated so and there is no truth in it. With regard to para 8 of the plaint, it is contended that the properties owned and possessed by 26 O.S.No.4682/2012 Rangaswamy were his absolute properties and same were purchased from his self earnings and not from anybodies money, including the suit property and so far as para No.9 of plaint is concerned, defendants have disputed writing of letter and contends that it is concocted and signature over the said letter is not of Rangaswamy's. So far as para No.10 of plaint is concerned, it is contended by the defendants that the property was purchased by Rangaswamy from his own earnings and parents of plaintiff No.1 have not sent ay amount and naming of the complex as Mamatha Complex is co incident and it is nothing to do with the daughter of plaintiff No.1, i.e., plaintiff No.5. So far para No.11 of plaint is concerned, it is contended by the defendants that Rangaswamy took VRS in 1974, as he was getting lot of income from his business. While denying para 12 of the plaint, it is contended that defendant No.1 had married to Rangaswamy on 01.06.1985 and she had begotten 4 children to him, they are Kumaraswamy, Dileep, Sindhu and Bharath and among them only son Kumaraswamy is alive and other three children are passed away. When Rangaswamy was alive, he took 27 O.S.No.4682/2012 a female children in adoption on 13.03.2003 and the name of the said child is Sindhuri and presently she s aged about 10 years In order to evidence the same, there is registered adoption deed dated 13.03.2003 and as such Sindhuri is association one of the legal heir of Rangaswamy and without her presence the present suit is not maintainable and said Sindhuri is proper and necessary party to the proceedings. Non-inclusion of Sindhuri is fatal to the case of the plaintiffs. While denying para No.13 of the plaint, it is contended by defendant No.1 that she married deceased Rangaswamy on 01.06.1985 as per the Hindu rituals and their marriage has also registered in the office of Sub-Registrar and she is not a stranger and defendant No.1 is legally wedded wife of deceased Rangaswamy and while disputing and denying para No.14 of the plaint, it is contended that the letter is fabricated and the Will dated 21.022012 discloses the intention of Rangaswamy. While admitting para No.15 of the plaint averments, it is contended that Rangaswamy suffered head injuries on 07.03.1995 and it is the defendant No.1 who took care of Rangaswamy and not the plaintiff No.1. So far as para No.17 28 O.S.No.4682/2012 of plaint is concerned, defendants have denied and disputed the averments of para 16 and contended that plaintiffs with the intention to trouble and harass the defendants ad given false representation to the BBMP and Rangaswamy was hale ad healthy till his death and after 1997 Rangaswamy did various transactions till his death, which goes to show that he was hale and healthy and capable of handling the situations. While denying plaint para No.17, they contended that plaintiff No.1 had lost relationship with Rangaswamy about 28 years ago and she was not in talking terms with Rangaswamy. Plaintiff No.1 never visited Rangaswamy when he was alive, i.e., subsequent to 01.06.1985. While disputing and denying the averments of para 18, defendants admitted that Rangaswamy assed away on 02.03.2012 and on 28.01.2012 he has executed the gift deed in favour of the defendants. It s also stated that deceased Rangaswamy has executed Will dated 22.02.2012. Plaintiffs had every knowledge about the gift deed on 28.01.2012 on the day when it was executed by Rangaswamy and similarly the plaintiffs had full knowledge of the Will dated 22.02.2012 on the same day when 29 O.S.No.4682/2012 Rangaswamy executed the Will. Despite the fact, the plaintiffs did not question the same when Rangaswamy was alive. After the death of Rangaswamy, plaintiffs started contended that defendant No.1 has played fraud on him to have the gift deed executed. It is further contended by them that only on the basis of marriage invitation, the plaintiffs cannot contend that they are related to Rangaswamy. Rangaswamy was hale ad healthy till his death and his physical condition was good and he was capable of understanding what was going around him and his mental condition was sound and he has executed the gift deed and the Will on his own volition and nobody has played fraud on him either to execute the gift deed or the Will. The plaintiffs with the sole intention to destabilize the said documents have made such allegations. While disputing and denying the averments of para 19 of the plaint, it is contended that Rangaswamy out of love and affection on 28.01.2012 voluntarily executed the gift deed in favour of defendants No.1 and 2 and also executed the will and after the death of Rangaswamy, plaintiffs have approached this Court and plaintiff No.1 since 28 years was living away from 30 O.S.No.4682/2012 Rangaswamy and she had no knowledge about Rangaswamy's health and further contends that there is no cause of action for the suit, plaintiffs are not in possession of the property and defendants are in possession of the suit property and valuation is not correct and court fee paid by the plaintiff is insufficient. With these contentions seeks to dismiss the suit.
5. On the basis of the above pleadings, my predecessor has framed the following issues on 15.04.2014:-
1. Does the plaintiffs prove that, the suit schedule property was purchased by G. Rangaswamy out of the amount paid by the parents of plaintiff No.1 namely Sri A. Narayanaswamy and Smt. Puttamma as contended in the plaint?
2. Does the plaintiffs prove that, after death of G.Rangaswamy, the plaintiffs have become absolute owners of the plaint schedule property as his legal heirs?
3. Does the plaintiffs prove that, they were in lawful possession of the plaint schedule property as on the date of filing of the suit?
4. Does the plaintiffs prove that, gift deed dated 28.01.2012 executed by G.Rangaswamy in favour of defendants No.1 31 O.S.No.4682/2012 and 2 is null and void and the same is liable to be cancelled?
5. Does the plaintiffs prove that, the marriage of G. Rangaswamy with defendant No.1 on 01.06.1985 is illegal and void for the reasons stated in the plaint?
6. Does the plaintiffs prove that, defendants No.1 and 2 have no right to alienate the suit schedule property in favour of anybody in any manner?
7. What order or decree?
6. To prove the case of the plaintiffs, the plaintiff No.1 herself examined P.W.1 and Ex.P.1 to P.30 are marked. Ex.P.1 is GPA dated 22.06.2012, Ex.P.2 is marriage invitation card dated 14.03.1971, Ex.P.3 is family tree, Ex.P.4 to P.7 are DP note, Ex.P.8 is gift deed dated 28.01.2012, Ex.P.9 is voter ID card of Yashodamma, Ex.P.10 is voter ID card of Munirathna, Ex.P.11 is voter ID card of Jamuna, Ex.P.12 is voter ID card of Hemalatha, Ex.P.13 is voter ID card of Mamatha, Ex.P.14 is voter ID card of Geetha, Ex.P.15 is voter ID card of Mohankumar, Ex.P.16 is voter ID card of Manjush, Ex.P.17 is passport of Shwetha, Ex.P.18 is letter, Ex.P.19 is certified copy of sale deed dated 07.07.1978, 32 O.S.No.4682/2012 Ex.P.20 is letter written by Rangaswamy, Ex.P.21 is wound certificate, Ex.P.22 is medical bill dated 16.03.1997, Ex.P.23 is letter by Yeshodamma dated 08.07.2003, Ex.P.24 is objections letter dated 12.03.2004, Ex.P.25 is death certificate of Rangaswamy, Ex.P.26 is medical invoice dated 18.02.2012, Ex.P.27 is clinical discharge summary, Ex.P.28 is certificate of marriage, Ex.P.29 is Fortis Hospital report and Ex.P.30 is photo.
On the side of defendants' defendant No.1 is examined as D.W.1 and Ex.D.1 to D.10 are marked. Ex.D.1 is voter ID of Rangaswamy, Ex.D.1 is marriage certificate, Ex.D.2 is birth certificate of Kumaraswamy, Ex.D.3 and D.4 are birth certificates, Ex.D.5 is original Will dated 22.02.2012, Ex.D.6 is certified copy of gift deed, Ex.D.7 is final endorsement, Ex.D.8 is death summary, Ex.D.9 is report, Ex.D.10 is death certificate issued by Fortis hospital.
7. Learned counsel for plaintiffs has vehemently contended hat plaintiff No.1 is legally wedded wife of deceased Rangaswamy and their marriage is solemnized on 14.03.1971, the 33 O.S.No.4682/2012 property is purchased by the deceased Rangaswamy out of the money paid by the father of plaintiff No.1, which is evidenced from Ex.P.18. While pressing into service Ex.P.18, he has categorically contended that it is letter written by deceased Rangaswamy and in the said letter it is clearly mentioned that he has requested to send Rs.12,000/- from one Mr.Chandru and registration will be done in his name since plaintiff No.1 could not be able to come. On the amount received under Ex.P.18 letter, the present property is purchased since deceased Rangaswamy was not having sufficient income since he was working in ITI company and he was drawing very meager amount and the marriage of deceased Rangaswamy with defendant No.1 is void marriage, since during the lifetime of plaintiff No.1 who is legally wedded wife of deceased Rangaswamy as on 14.03.1971 and without cancellation or without divorce of marriage between deceased Rangaswamy and plaintiff No.1, marriage contracted by defendant No.1 along with deceased Rangaswamy is null and void and hence marriage between defendant No.1 and deceased Rangaswamy is not legal in the eye of law. Regarding gift deed 34 O.S.No.4682/2012 dated 28.01.2012, learned counsel for plaintiffs has vehemently contended that as on the date of said gift deed, Rangaswamy was suffering from severe ill health and this aspect is substantiated through Ex.P.26 and P.29, during those days Rangaswamy was not in a position to take independent decision and he was controlled by defendant No.1 prevailing upon his Will, she got executed gift deed and he further contended that Rangaswamy was forcibly discharged from the hospital and within a span of 3 to 4 days from the discharge of Rangaswamy against to the medical advice, Ex.P.8 is came into picture and he gave more stress on non-examination of attesting witness to Ex.P.8 and contends that in view of non-examination of attesting witness Ex.P.8-the gift deed dated 28.01.2012, the same cannot be looked into and even otherwise the said document came into picture under the suspicious circumstances as defendant No.1 was prevailing upon Will of the deceased Rangaswamy. So far as possession of the property is concerned, he contended that till death of Rangaswamy it was under his control and he was receiving rents and after his death, suit property is still in the 35 O.S.No.4682/2012 possession of the tenants and who ever succeeds in the suit, are entitled for possession. With these submissions he seeks to decree the suit. Apart from oral argument, he has filed synopsis of arguments and he has relied upon the several decisions:
8. Per contra, the learned counsel for defendants has categorically contended that marriage of plaintiff No.1 with Rangaswamy is to be declared first as valid and then only plaintiff No.1 should seek for cancellation of marriage of defendant No.1 along with Rangaswamy and in the absence of such declaration, marriage between defendant No.1 and defendant Rangaswamy cannot be cancelled. Apart from that he has also contended that present is to be adjudicated by the Family Court and this Court has no jurisdiction, since marriage is in dispute which is to be adjudicated by the family Court alone and while arguing he contended that possession is with the defendants and in the absence of prayer for possession, present suit is also not maintainable and he further contended that plaintiffs have to seek for declaration that they have become owner of the schedule 36 O.S.No.4682/2012 property by virtue of the inheritance. With these submissions, he seeks to dismiss the suit.
9. While addressing arguments on reply, learned counsel for plaintiffs contended that first marriage is admitted by the defendant during cross-examination and he also contends that this Court has jurisdiction, because Section 9 of Civil Procedure Code is entirely different from Section 7 of Family Courts Act, under Section 9 of Civil Procedure Code jurisdiction of this Court is not ousted since property question is involved in this case and this Court has jurisdiction. He has also relied upon decisions in this regard and so far as possession is concerned, he has categorically contended that possession is with the tenants and if the gift is cancelled, automatically possession will fall to the plaintiffs. With these contentions he seeks to decree the suit.
10. Having heard the arguments and perused the records, my answers to the above issues are as under:-
Issue No.1: In the negative Issue No.2: In the affirmative 37 O.S.No.4682/2012 Issue No.3: In the negative Issue No.4: In the affirmative Issue No.5: In the affirmative Issue No.6: In the affirmative Issue No.7: As per final order, for the following:-
REASONS
11. Issue No.1:- Plaintiffs are before Court for cancellation of gift deed dated 28.01.2012 allegedly executed by G. Rangaswamy in favour of defendants No.1 and 2 and to declare the marriage dated 01.06.1985 between defendant No.1 and Rangaswamy is illegal and void and for permanent injunction to restrain the defendants No.1 and 2, their agents, servants or anyone claiming through or under them from selling, mortgaging, leasing or in any way alienating the suit schedule property, cost and such other reliefs.
12. Plaintiffs in the suit have specifically contended that, suit schedule property is purchased by deceased Rangaswamy out of the amount paid by the parents of plaintiff No.1. In this regard plaintiffs are heavily relying upon Ex.P.18, which is a letter stated 38 O.S.No.4682/2012 to have been written by deceased Rangaswamy, which reads as under:
"²æêÀÄw AiÀıÉÆÃzÀgÀªÀjUÉ gÀAUÀ¸Áé«Ä w½¸ÀĪÀÅzÉãÉAzÀgÉ £Á£ÀÄ w½¹zÀ ºÁUÉ (12000) ºÀ£ÉßgÀqÀÄ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼À£ÀÄß ZÀAzÀæ£À PÉÊ° PÉÆlÄÖ PÀ¼ÀÄ»¸ÀĪÀÅzÀÄ. jf¸ÀÖgÀ£ÀÄß £À£Àß ºÉ¸ÀjUÉ ªÀiÁrPÉƼÀÄîvÉÛãÉ. JvÀPÉÌAzÀgÉ ¤Ã£ÀÄ §gÀĪÀÅzPÀ ÉÌ DUÀzÀ PÁgÀt. vÀ¥ÀàzÉ (ºÀ£ÉßgÀqÀÄ ¸Á«gÀ) PÀ¼ÀÄ»¸ÀÄ. ¨ÁQ §AzÀ £ÀAvÀgÀ. E£ÀÄß ºÉaÑUÉ PÀ¼ÀÄ»¸À¨ÉÃqÀ."
This is the only document which the plaintiffs relies upon to say that Rangaswamy has purchased the suit schedule property purchased the suit schedule property out of the said amount. First of all the said document does not contain date on which the same is written and apart from that the sale deed upon which suit schedule property is purchased is in the year 1978. From 1978 to till the date of suit the plaintiff No.1 has not questioned the purchase of the property in his name and apart from that, it is only a letter requested to plaintiff No.1 to send the amount of Rs.12,000/-. Further details are not forthcoming before Court whether the said amount of Rs.12,000/- is paid or not. Except plaintiff No.1, no witness has been examined by the plaintiffs' side 39 O.S.No.4682/2012 to substantiate the contention that as per the request made in Ex.P.18, amount has been sent or not. If the amount has been sent, plaintiff No.1 should have examined her brother Chandra. But in this case, no evidence of Chandra is adduced for the reasons best known to the plaintiffs. The defendants have categorically denied Ex.P.18- letter is not written by deceased Rangaswamy. When the same is denied that it is not the letter written by Rangaswamy, the burden is upon the plaintiffs to prove Ex.P.18 in accordance with law, because mere marking of a document is not sufficient to prove the contents. If at all Rangaswamy has written the said letter as per Ex.P.18, definitely plaintiffs should have taken some risk in comparing the signature of Rangaswamy and handwriting of Rangaswamy with admitted signatures and handwriting. But these efforts are not forthcoming from the side of the plaintiffs. Even otherwise, as already discussed, Ex.P.18 is only a letter requesting Yeshoda, i.e., plaintiff No.1 to send amount. The plaintiffs have not placed any other further material before Court to make believe that amount of Rs.12,000/- has been paid in pursuance of the request made as 40 O.S.No.4682/2012 per Ex.P.18. In the absence of materials for having paid the amount and letter is in the handwriting of Rangaswamy, this Court is not in a position to hold that suit property is purchased by the deceased Rangaswamy out of the said amount. Hence issue No.1 is held in the 'negative'.
13. Issue Nos.2 and 5:- These two issues are taken together for common discussion since these issues are interwoven.
14. The suit is between the parties regarding valid marriage of plaintiff No.1 and defendant No.1 with deceased Rangaswamy. Plaintiffs have contended that plaintiff No.1 is married to deceased Rangaswamy on 14.03.1971 and plaintiffs have also contended that deceased Rangaswamy has married to defendant No.1 on 01.06.1985 during subsistence of plaintiff No.1's marriage. It is also contended that out of the wedlock between plaintiff No.1 and deceased Rangaswamy remaining plaintiffs have born.
41 O.S.No.4682/2012
15. Now this Court has to adjudicate the validity of the marriage between plaintiff No.1 and deceased Rangaswamy and validity of marriage between defendant No.1 and deceased Rangaswamy.
16. Marriage between plaintiff No.1 and deceased Rangaswamy is admitted by D.W.1 during her cross-examination. In this regard I would like to extract some important cross- examination of D.W.1. In para 10 on page 6 of D.W.1 cross- examination she has categorically admitted that:
"In 1986-87, I came to know that Rangaswamy had already married the plaintiff No.1 and from their wedlock, plaintiff Nos.2 to 7 were born."
During the cross-examination of P.W.1 it is suggested to P.W.1 that:
"It is false to suggest that the relationship between myself and my husband was strained 25 years prior to the execution of the alleged Will."42 O.S.No.4682/2012
"It is false to suggest that my husband purchased the suit schedule property from his own income in 1978."
"My husband was working for ITI."
"On 08.07.2003 the relationship between me and my husband was very cordial. On that day I was living with my husband in Rajajinagar."
"I do not know the contents of Ex.P.23. The writings in Ex.P.23 'since there was some matrimonial dispute between me and my husband, Rangaswamy and he is making some hectic effort to get the khatha changed in the name of Champakavathi' was not written by me. It is false to suggest that Ex.P.23 is a created document. In 2004 also, the relationship between me and my husband was very cordial."
From appreciation of cross-examination by the counsel for defendants to P.W.1 and cross-examination of D.W.1, it is crystal clear that defendant No.1 has admitted the marriage of Rangaswamy with plaintiff No.1. Moreover the plaintiffs have produced Ex.P.2, which is marriage invitation card, wherein it is reflected that plaintiff No.1 is married to deceased Rangaswamy 43 O.S.No.4682/2012 on 14.03.1971 and in all the documents produced at Ex.P.9 to P.17 name of Rangaswamy is reflected.
17. In the backdrop of this, now we have to examine the marriage of defendant No.1 with deceased Rangaswamy. The defendant No.1 has produced marriage certificate as per Ex.D.1, which reflects marriage of defendant No.1 with deceased Rangaswamy is taken place on 01.06.1985 in the Sub-Registrar office as per Special Marriage Act. When the marriage is performed under Special Marriage Act, now we have to look into the provisions of Section 4 and 24 of the Special Marriage Act.
As per Section 4 of Special Marriage Act, which is as under:
"4. Conditions relating to solemnization of special marriages.-- Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely:-
(a) neither party has a spouse living;
(b) xx xx xx
44 O.S.No.4682/2012
(c) xx xx xx
(d) xx xx xx
(e) xx xx xx
As on the date of marriage between defendant No.1 and deceased Rangaswamy, plaintiff No.1 is alive. And during subsistence of marriage between plaintiff No.1 and deceased Rangaswamy, defendant No.1 and deceased Rangaswamy have marred in violation of Section 4 of the Special Marriage Act.
As per Section 24 of Special Marriage Act, which reads as under:-
"24. Void marriages.-- (1) Any marriage solemnized under this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if--
(i) any of the conditions specified in clauses (a),
(b), (c) and (d) of section 4 has not been fulfilled; or
(ii) xx xx
2. xx xx 45 O.S.No.4682/2012 Any marriage solemnized under the Special Marriage Act shall be void which are in contravention of Section 4 of the said Act. This is a particular case wherein the provision of Section 4(a) of the Act is specifically violated, since Rangaswamy married defendant No.1 when plaintiff No.1 is alive and when she is not divorced. Hence under such circumstance the marriage between defendant No.1 and deceased Rangaswamy becomes void as per Section 24 of the Special Marriage Act.
18. Now issue No.2 is with regard whether after the death of Rangaswamy, the plaintiffs have become absolute owners of the plaint schedule property as his legal heirs.
19. There is no dispute that suit property stood in the name of deceased Rangaswamy and he purchased the same from its previous owner. The only dispute between the parties is that plaintiffs have contended that the said property was purchased by deceased Rangaswamy out of the amount paid by the parents of the plaintiff No.1, whereas defendant No.1 has contended that it is self acquired property of deceased Rangaswamy. When it is 46 O.S.No.4682/2012 the opinion of the Court that the property is not purchased by Rangaswamy out of the amount paid by the parents of plaintiff No.1, the property which stands in the name of G. Rangaswamy, definitely becomes his self acquired property and when the said property becomes self acquired property of Rangaswamy, definitely plaintiffs being Class-I legal heirs are entitled for the property. Hence issue Nos.2 and 5 are held in the 'affirmative'.
20. Issue No.3:- This issue casted the burden upon the plaintiffs to prove the possession. The suit property admittedly is commercial complex and it was under the control of Rangaswamy till his death. The same is evidenced during the cross- examination of D.W.1 at page No.7 para 16 that:
"It is true to suggest that till his death, Rangaswamy was receiving the rents of suit schedule property."
Immediately after his death, on 02.07.2012 the present suit is filed. The tenants are in exclusive possession of the suit property. Since there is rival claimancy over the property by 47 O.S.No.4682/2012 plaintiffs and defendants, adjudication of the gift deed which decides the possession. Since the property is a commercial property, naturally both plaintiffs and defendants are not in possession of the property and it was under the control of the deceased Rangaswamy. When the plaintiffs or the defendants are not in physical possession of the property, I am of the opinion that plaintiffs are not in possession, since tenants are in possession of the property. Hence this issue is held in the 'negative'.
21. Issue No.4:- Plaintiffs in their suit have also sought for cancellation of the gift deed dated 28.01.2012 allegedly executed by late Rangaswamy in favour of defendants No.1 and
2.
22. So far as execution of gift deed is concerned, there is no dispute that the same is executed by Rangaswamy. But the question of validity of the said gift deed has to be adjudicated. The main contention urged by the plaintiffs is that deceased Rangaswamy has not executed the said gift deed on his own and 48 O.S.No.4682/2012 the said gift deed is stated to have been executed just 34 days before his death and they have categorically contended that at the end of his life he was seriously suffering from age old ailments and also heart problem and he was repeatedly hospitalized for his ailments. Rangaswamy died on 02.03.2012 and gift deed is executed o 28.01.2012. Before execution of the gift deed he was in hospital and against the medical advice he was forcibly discharged and within short span of 3-4 days the said gift deed is sated to have been executed.
23. In this regard, the admission in cross-examination is very much important. In the cross-examination of D.W.1 at page No.13 para 36 she has admitted that:
"It is true to suggest that I got admitted G. Rangaswamy to Narayana Hrudayalaya Hospital on 23.01.2012. It is true to suggest that he was there for about three days. It is true to suggest that prior to fifteen days to 23.01.2012, Rangaswamy was suffering from heart ailment, breathing problem and hyper tension. It is false to suggest that Rangaswamy was got discharged by me against the medical advice."49 O.S.No.4682/2012
"As per Ex.P.27 Rangaswamy was discharged against the medical advice, witness volunteers that Rangaswamy requested the doctor to discharge him and I signed the necessary papers."
This clearly shows that Rangaswamy was in hospital on 23.01.2012 and he was there for about 2-3 days and gift deed is came into existence on 28.01.2012, means immediately after discharge from the hospital, the same has been executed.
24. Ex.P.26 and P.27 which are medical records clearly disclose that said Rangaswamy was not only suffering from heart ailment and he is also suffering from other severe health problems and in Ex.P.27 it is clearly mentioned as "Clinical Discharge summary discharged at request". In the said document it is mentioned that:
Patient presented with above symptoms. Chest X-ray revealed pleural effusion. Pleural tapping done and sent for cytology which was negative for malignant cells was started on optimum antibiotics and was advised surgery for aneurysm; patient requested discharge and deferred surgery. Hence being 50 O.S.No.4682/2012 discharged in a hemodynamically stable condition with the below listed medications."
So the medical records also reveals that condition of Rangaswamy was very much critical and it is to be noted that as per Ex.D.10, he died in Fortis Hospital itself. From January to till his death he was repeatedly hospitalized for his health issues. In the meanwhile Ex.D.6 the gift deed came into picture. That shows that defendant No.1 who was with deceased Rangaswamy was in a position of dominating the will of deceased Rangaswamy.
25. In this regard the learned counsel for plaintiffs submitted that the gift deed is came into picture because defendant No.1 was in a position of dominating the will of the deceased Rangaswamy and hence the said gift deed is came into picture. In this regard he has referred to Section 16 of the Indian Contract Act, i.e., undue influence. It is pertinent to extract Section 16 of the Indian Contract Act, as under:
"16. 'Undue influence' defined.-- (1) A contract is said to be induced by 'undue influence' where the relations subsisting between the parties 51 O.S.No.4682/2012 are such that one of the parties is in a position to dominate the will of the other ad uses that position to obtain an unfair advantage over the other.
(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of anther--
(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or
(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other."
26. Here in this case, defendant No.1 who is stated t be the wife of deceased Rangaswamy was with him in his last days and it is evident from the records produced by the plaintiff that he was repeatedly hospitalized for his age old ailments and also 52 O.S.No.4682/2012 heart problem and he was discharged from the hospital against the medical advise and immediately after the same Ex.P.8-gift deed is came into picture. At this moment we have to consider that defendant No.1 has produced gift deed at Ex.D.6, but surprisingly she has not examined the attesting witness of Ex.D.6. Though as per Section 68 of the Evidence Act, examination of attesting witness to the gift deed is not necessary, but in this particular case, gift deed is to be proved by examining attesting witness, because plaintiffs have categorically made allegation against defendant No.1 that by dominating the will of deceased Rangaswamy defendant No.1 has got executed the gift deed. As per Section 16 of the Contract Act, it is the burden upon the person to whom the document is executed - "that burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other."
27. Under the circumstances, it is mandatory on the part of defendant No.1 to examine the attesting witness to the said 53 O.S.No.4682/2012 document and when she has not examined any attesting witness to Ex.D.6, this Court has no other option but to draw adverse inference under Section 114 of Indian Evidence Act. as per Section 16 of Indian Contract Act, the burden is upon the defendant No.1 to prove that there was no any undue influence, but without examining any attesting witness, she has not discharged her burden. Hence I am of the opinion that when the defendant fails to examine the attesting witness and prove the genuineness of the transaction, there is no other go but to say the gift deed dated 28.01.2012 is null and void and the same is liable to be cancelled. Hence issue No.4 is held in the 'affirmative'.
28. Issue No.6:- Since defendant No.1 is not a legally wedded wife and when her marriage is void marriage under Section 24 of Special Marriage Act, she has no right in the suit property and the plaintiffs being Class-I legal heirs, are entitled for property. In view of finding given on issue No.4 by holding that gift deed executed by deceased Rangaswamy on 28.01.2012 54 O.S.No.4682/2012 is null and void, defendants No.1 and 2 have no authority to execute any type of document alienating the suit schedule property. Hence it is held in the 'affirmative'.
29. Learned counsel for plaintiffs along with written arguments has also filed list with authorities. In the first judgment relied upon the counsel for plaintiff reported in (2004) 9 Supreme Court Cases 468 (Krishna Mohan Kul alias nani charan kul and another vs. Pratima Maity and others) rendered by Hon'ble Supreme Court it is held that:
"Principle of equity ingrained therein - Onus of proof in case of transactions executed in fiduciary relationships - Usual rule for onus of proof in case of a plea of fraud, misrepresentation or undue influence - Reversal of such onus in case of active, confidential or fiduciary relationships - Document conferring benefit on donee. - Onus of proof to prove due execution of document in accordance with law - Held, is always on donee/beneficiary, even dehors the reasonableness or otherwise of the person holding position of confidence or trust."55 O.S.No.4682/2012
This is aptly applicable to the facts on hand, since as I have already discussed deceased Rangaswamy was with defendant No.1 and during his last days the defendant No.1 who was in the position dominating the will of deceased and the document, i.e., gift deed came into picture during the last days of deceased Rangaswamy ad defendant No.1 ought to have examined any one of the attesting witness to prove her bonafides. But in the absence of examining anyone of the attesting witness, I am of the opinion that she has not discharged her burden. Hence the above decision is aptly applicable to the case on hand.
Another decision reported in AIR 1963 SC 1279 (Ladli Prashad Jaiswal vs. The Karnal Distillery Co. Ltd., Karnal and others) is also in the same line of the above decision wherein the burden is always upon the beneficiary of the gift deed to prove the bonafides.
Another decision reported in AIR 1958 P&H 190 The Karnal Distillery Co. Ltd., Karnal and others vs. Ladli 56 O.S.No.4682/2012 Prashad Jaiswal) is also in the same line under Section 16 of the Contract Act and this is also applicable to the facts on hand.
Another decision reported in (2014) 4 Supreme Court Cases 196 (Prathima Chowdhury vs. Kalpana Mukherjee and another) It is also in the same line of the above decision, which speaks about burden of proving by the beneficiary. It is also applicable to the facts on hand.
Another decision reported in AIR 1961 Madras 190 (M.A. Abdul Malick Saheb vs. T.P. Muhammad Yousuf Sahib and others) wherein it is held that:
"The mere existence of the fiduciary relation raises the presumption of undue influence and the court will hold the transaction to be had unless the presumption of undue influence is rebutted by cogent evidence adduced by the donee. We are satisfied that defendants 1 and 2 have failed to discharge the onus which rests upon them in this case."57 O.S.No.4682/2012
So this decision is also applicable to the facts on hand, in view of the non-examination of attesting witness by defendant No.1.
Another decision reported in AIR 1985 Madras 321 (Andalammal vs. Rajeshwari Vedachalam (daced) and others) It is also in the same line of other decisions regarding undue influence and the same is applicable to the facts on hand.
Another decision reported in AIR 1962 Patna 168 (Bhola Ram Lieri and othrs vs. Peari Devi and others) It is with respect to Section 16 of the Contract Act which says about burden of proof and it s also applicable to the facts on hand.
Another decision reported in Manu/HP/0014/1989 (Smt Niko Devi vs. Kirpa) It is also in respect of the burden of proof in case of fiduciary relationship. Hence it is applicable to the facts on hand.
Another decision reported in AIR 1985 P&H 315 (Ajmer Singh and others vs. Atma Singh) it is also with respect to 58 O.S.No.4682/2012 the Section 16 of Contract Act and fiduciary relationship and hence it is applicable to the facts on hand.
Another decision reported in AIR 1975 All 259 (Sher Singh and others vs. Pirthi Singh and other) it is also under Section 16 of the Contract Act and applicable to the facts on hand.
Another decision reported in AIR 1972 HP 117 (Smt. Kartari vs. Kewal Krishan and others) It is also with regard to burden of proof under Section 16 of the Contract Act wherein the beneficiary is in fiduciary relationship of the deceased, hence it is applicable to the facts on hand.
Another decision reported in Manu/RH/0529/2005 (Munna Kumari vs. Umrao Devi and others) It is also with regard to the gift and burden of proof and the same is applicable to the facts on hand.
Another decision reported in Manu/TN/0685/1996 (Dharman and others vs. Marimuthu) It is in respect of 59 O.S.No.4682/2012 Section 126 of Transfer of Property Act for cancellation or revocation of gift. The said decision is also with regard to Section 16 of Contract Act and the same is also applicable to the facts on hand.
Another decision reported in AIR 1972 HP 33 (Ballo vs. Paras Ram) is also applicable to the case on hand, since it is also in the same line of other decisions.
Another decision reported in AIR 2013 Kar 24 (Laxmibai vs. Anasuya) It is in respect of marriage. In the said decision it s held that:
"Under the Hindu Marriage Act, the Parliament declared that if person marries during the subsistence of an earlier marriage, i.e., a person who marries while he has spouse living at the time of the marriage and such marriage is solemnized after the commencement of the Act, it shall be null and void and provisions of Sections 494 and 495 of the Penal Code, applies to the such marriage and is punishable under the Hindu Marriage Act. Certainly the Parliament had no intention of conferring any right on the wife who is a party to the 60 O.S.No.4682/2012 offence of bigamy and gave her a share in the property of her deceased husband."
In the present case, defendant No.1 who is aware of the first marriage of Rangaswamy with plaintiff No.1 has married during the lifetime of plaintiff No.1 under the Special Marriage Act. Section 24 of Special Marriage Act is very clear that any marriage solemnized in violation of Section 4 of the said Act itself is void. The present decision is applicable to the facts on hand.
Another decision reported in AIR 1968 SC 1413 (Gopal Krishnaji Ketkar vs. Mhamed Haji Latif and others) It is with respect to burden of roof wherein it is held that:
"Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue."
In this case, defendant No.1 ought to have examined attesting witness to the gift deed, but she has failed to examine attesting witness. Under such circumstances, Section 114 of 61 O.S.No.4682/2012 Evidence Act adverse inference can be drawn. Hence it is applicable to the facts on hand.
Another decision reported in (2006) 12 Supreme Court Cases 552(Avtar Singh and others vs. Gurdial Singh and others) It is with regard to proof by admission - Held, admission forms the best evidence - As per S.58 Evidence Act, .......... need not be proved......"
In this case also defendant No.1 has admitted during her cross-examination that plaintiff No.1 was married to deceased Rangaswamy earlier to her marriage. Hence it is applicable to the facts on hand.
Another decision is in the same line of above decision reported in (1974) 1 Supreme Court Cases 242 is applicable to the facts on hand
30. While arguing learned counsel for defendants has produced decision reported in (2016) 13 Supreme Court Cases 308 (Balram Yadav vs Fulmaniya Yadav). It is in 62 O.S.No.4682/2012 respect of Section 7(1) of Family Courts Act. Since he argued that validity of marriage between deceased Rangaswamy and plaintiff No.1 and defendant No.1 with deceased Rangaswamy is in question, this Court has no jurisdiction. But in my humble pinion question of jurisdiction should have bee raised at the earliest point of time as per Section 21 of CPC. But even otherwise present decision is not applicable to the case on hand, because in this case not only question of validity of marriage of plaintiff No.1 with deceased Rangaswamy along with marriage of defendant No.1 with deceased Rangaswamy is in question, but there is serious dispute with respect to property ad also execution of gift deed. In the absence of Rangaswamy the lis is between plaintiffs and defendants in respect of property and also marriage, and plaintiffs have sought for cancellation of gift deed which is not within the purview of Family Court. Hence the decision is not applicable to the facts on hand.
63 O.S.No.4682/2012
Another decision reported in AIR 2007 Punjab and Haryana 74 (Balwinder Kaur vs. Gurmukh Singh) is relied upon by the defendants which is in respect of Section 7, 11 and 5 of Hindu Marriage Act.
Validity of marriage - Proof- Fact that marriage was performed in accordance with customary rites and ceremonies, as required u/S 7 has to be established - Registration certificate of marriage issued by authority is no proof of valid marriage - Husband seeking decree of nullity of marriage on ground that wife had earlier marriage subsisting - valid ceremonies of earlier marriage a required u/S. 7 not proved - Decree cannot be granted."
In my humble opinion the present decision is not applicable to the facts on hand and the decision goes against defendant No.1 herself because the marriage between defendant No.1 along with Rangaswamy is to be proved in accordance with law. But instead of that defendant No.1 just produced the marriage certificate issued by the Registrar of marriage. At the same time, she has admitted the marriage of plaintiff No.1 with deceased Rangaswamy prior to her marriage. But she admits marriage, no 64 O.S.No.4682/2012 question of proving validity of marriage of plaintiff No.1. at the same time she has to prove her marriage is in accordance with Section 4 of Special Marriage Act and it is not in violation of Section 4 and her marriage is not void under Section 24(a) of Special Marriage Act. Hence the present decision is not applicable to the facts on hand.
Another decision reported in AIR 2007 (NOC) 852 (A.P.) it is with regard to gift deed and handing over possession. It is to be considered when the building in question is a commercial building where tenants are in possession. Under the circumstances the present decision is not applicable to the case on hand.
Another decision reported in AIR 2001 SC 2040 (Surendra Kumar v. Nathulal) is with regard to Section 68 of Evidence Act. Though as per Section 68 of Evidence Act, attesting witness need not be examined, unless it is not admitted by the executor. But here in this case, plaintiffs have disputed the execution of gift deed. Apart from that as per Section 16 of 65 O.S.No.4682/2012 Contract Act defendant No.1 claims t be in fiduciary relationship should have been examined one attesting witness to prove her bonafides. In the absence of that, present decision cannot be applied to the facts on hand.
31. Learned counsel for plaintiffs while arguing reply arguments has produced decision reported in (2017)9 Supreme Court Cases 591 (Samar Kumar Roy (Dead) Through legal representative (Mother) vs. Jharna Bera it is with respect to Section 34 of Specific Relief Act, wherein it is held that "Relief of declaration under Section 34 can be entertained by Civil Court in the declaratory relief. And t is produced to counter the decision produced by the defendant No.1 reported in (2016) 13 SCC 308. Since the present decision is latest decision, that can be looked into and it is applicable to the facts on hand.
Another decision reported in AIR 2018 SC 786 is with respect to jurisdiction of Civil Court - Exclusion of - Determination - Both parties claiming to be married and wives of de person - Dispute between parties found to be civil dispute 66 O.S.No.4682/2012 and not family dispute - Such dispute to be resolved on basis of evidence tendered in Civil Court - No special procedure required for resolving issues before Family Court under Act of 1984 - High Court dismissing second appeal is not maintainable on ground of Civil Court having no jurisdiction, illegal"
This is aptly applicable to the facts on hand, since both parties are fighting that they are legally wedded wife.
Another decision reported in Manu/OR/0014/1979 wherein it is held that:
"Where a marriage in fact has been performed, it will be presumed that necessary ceremonies have also been duly performed and it is incumbent on him who challenges the legality of the marriage to rebut the presumption and to establish by evidence that the form of marriage is invalid in some respect or the other. It is not necessary that the witnesses to the marriage should prove al the details which taken together constitute a valid marriage under the Hindu Law."
Here in this case also marriage of plaintiff No.1 is admitted and thus defendant No.1 to establish the marriage of plaintiff 67 O.S.No.4682/2012 No.1 and deceased Rangaswamy is not valid but she has not discharged her burden.
32. Issue No.7:- In view of my findings on the above issues, I proceed to pass the following:-
ORDER The suit of the plaintiffs is decreed in part.
The gift deed dated 28.01.2012 executed by late G. Rangaswamy in favour of defendants No.1 and 2 which is registered as document No.CMP-1-03508-2011- 12 is cancelled. Office is directed to send decree copy to the concerned Sub-Registrar for cancellation of the said instrument.
The marriage dated 01.06.1985 between defendant No.1 and late Rangaswamy is declared as null and void. Office is directed send decree copy to the Registrar of Marriages, Rajajinagar, Bengaluru for necessary endorsement in the concerned register.
No order as to costs.
68 O.S.No.4682/2012Draw a decree accordingly.
(Dictated to the Stenographer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 20th day of February, 2020.) (SATHISHA L.P.) XII ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY SCHEDULE All that piece and parcel of the immovable property bearing No.01 (Old No.22/4-9) situated at BBMP ward No.53, having PID No.53-220-01, Nagendra Block, 22nd Main Road, Banashankari 3rd Stage, Bengaluru 560 50 measuring East to West 60 sq. feet and North to South 40 sq. feet totally measuring 2400 sq feet along with the commercial building thereon, and bounded by:
East by: Road
West by: Property No.25
North by: Property No.10
South by: Property No.8
ANNEXURE
I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1: N. Yeshodamma
69 O.S.No.4682/2012
(b) Defendant's side :
D.W.1: Champakavathi
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P.1: Original GPA dated 11.06.2012
Ex.P.2: Wedding invitation card
Ex.P.3: Family tree
Ex.P.4 to Four on demand pronote
P.7:
Ex.P.8: Certified copy of gift deed dated
28.01.2012
Ex.P.9 to Voter ID of plaintiffs No.1 to 6, 8 and 9 P.16:
Ex.P.17: Passport of plaintiff No.7 Ex.P.17(a) Notarized copy of passport Ex.P.18: Letter written by 1st plaintiff's husband Ex.P.19 Certified copy of sale deed dated 07.07.1978 Ex.P.20: Letter written by 1st plaintiff's husband Ex.P.21: Would certificate Ex.P.22: Cash bill Ex.P.23 Two letters written by 1st plaintiff to BBMP and P.24:
Ex.P.25: Death certificate of 1st plaintiff's husband Ex.P.26: Medical invoice Ex.P.27: Clinical discharge summary Ex.P.28: Marriage certificate Ex.P.29: Medical report of 1st plaintiff's husband (69 pages) Ex.P.30: Photo 70 O.S.No.4682/2012
(b) Defendants side :
Ex.D.1: Voter ID of Rangaswamy
Ex.D.1: Marriage certificate
Ex.D.2 to Birth extracts
D.4:
Ex.D.5: Registered Will
Ex.D.5(a) Signatures of Rangaswamy
to D.5(c)
Ex.D.6: Certified copy of gift deed
Ex.D.7: Final endorsement
Ex.D.8: Death summary
Ex.D.9: Receipt
Ex.D.10: Death certificate
XII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.