Karnataka High Court
Smt Tulasamma vs Smt Varalakshmi on 27 August, 2012
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR. JUSTICE H. BILLAPPA
REGULAR FIRST APPEAL NO.803/2003
BETWEEN:
SMT.TULASAMMA,
W/O MUDLAGIRIYAPPA,
SINCE DEAD BY LR'S
1. MUDLAGIRIYAPPA,
S/O LATE THIMMAIAH,
AGED ABOUT 97 YEARS,
THE ABOVE SL.NO.1 DIED
ON 01.06.2008
APPLICANT NOS.2,3(a) &
4 TO 6 ARE SONS
OF SMT.TULASAMMA.
2. SRI.VENKATARAMAIAH,
S/O MUDLAGIRIYAPPA,
AGED ABOUT 55 YEARS,
3. SRI.THIMMARAYA,
S/O MUDLAGIRIYAPPA,
AGED ABOUT 37 YEARS,
DEAD BY LR
3(a) GANGALAKSHMAMMA,
W/O LATE THIMMARAYAPPA,
2
4. SMT.KENCHAMMA,
D/O MUDLAGIRIYAPPA,
AGED ABOUT 50 YEARS,
5. SMT.HANUMAKKA,
D/O MUDLAGIRIYAPPA,
AGED ABOUT 47 YEARS,
6. SMT.CHIKKATHIMMAKKA,
D/O MUDLAGIRIYAPPA,
AGED ABOUT 38 YEARS,
SL.NOs.1 TO 6 ARE
RESIDING AT NO.187,
OLD NO.13, 2ND CROSS,
4TH MAIN,
RAMACHANDRAPURAM,
BANGALORE-560024.
... APPELLANTS
(BY SRI.RAVISHANKAR.S, ADVOCATE)
AND:
1. SMT.VARALAKSHMI
W/O NAGARAJ,MAJOR,
2. SRI.NAGARAJ,
S/O CHIKKAMUTHAPPA,
& M/O VARALAKSHMI,
MAJOR,
BOTH ARE RESIDING AT
NO.187, 2ND CROSS,
4TH MAIN,RAMACHANDRAPURAM,
BANGALORE-560024.
... RESPONDENTS
(BY SRI.M.P.NATARAJA, ADV. FOR SRI.M.S.PURUSHOTHAM
RAO, ADV. FOR R1 AND R2)
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THIS REGULAR FIRST APPEAL IS FILED UUNDER
SECTION 96 OF CPC, AGAINST THE JUDGEMENT AND
DECREE DATED 28.03.2003 PASSED IN
O.S.NO.10352/1996 ON THE FILE OF THE XXVIII ADDL.
CITY CIVIL & SESSIONS JUDGE, MAYOHALL UNIT,
BANGALORE,(CCH-29), DISMISSING THE SUIT FOR
DECLARATION AND MANDATORY INJUNCTION.
THIS REGULAR FIRST APPEAL COMING ON FOR
FINAL HEARINGS THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
JUDGMENT
This appeal by the plaintiffs who are the L.Rs of the original plaintiff is directed against the judgment and decree, dated 28.03.2003, passed by the XXVIII Additional City Civil & Sessions Judge, Bangalore, in O.S.No.10352/1996.
2. By the impugned judgment and decree, the Trial Court has dismissed the suit.
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3. Aggrieved by that, the appellants/plaintiffs have filed this appeal.
4. The respondents 1 and 2 are defendants 1 and 2 in the Trial Court. The parties will be referred to with reference to their rank in the original suit O.S.No.10352/1996.
5. Briefly stated the facts are:
The original plaintiff Smt.Tulasamma filed suit in O.S.No.10352/1996 for declaration that the General Power of Attorney and affidavit dated 26.08.1991 is null and void. The sale deed dated 19.9.1995 executed by the 1st defendant in favour of the 2nd defendant in respect of the suit 'B' schedule property is null and void and not binding on the original plaintiff and for possession of the suit 'B' schedule property.5
6. The case of the original plaintiff Smt.Tulasamma was that she is the owner of site and building bearing Old No.13, New No.187, situated at II Cross, 4th Main Road, Ramachandrapuram, Bangalore-21 and it is her self acquired property. She purchased the suit schedule property through registered sale deed dated 20.08.1959. The Khata of the suit schedule property stands in the name of the original plaintiff's husband Sri.Mudlagiriyappa. The plaintiff and her husband are paying taxes. In the year 1978, a portion of the suit schedule property came to be acquired for road widening. The compensation was granted and it was received by the original plaintiff and her husband. It is stated, the suit schedule property consists of eight portions and in one portion plaintiff and her family members are residing, two portions are in the occupation of the 6 defendants 1 and 2 and their family members and the remaining portions are in the occupation of the tenants.
7. The defendants 1 and 2 are in possession of a portion of the suit schedule property on leave and licence. After the demise of 1st defendant's father, the mother of the 1st defendant Smt.Akkamma had no shelter. Therefore, the original plaintiff and her husband taking sympathy allowed them to stay. The defendant No.2 came into picture after he married the defendant No.1. The defendants 1 and 2 and Smt.Akkamma have no right, title or interest in the suit schedule property. The defendants 1 and 2 started asserting their right in the suit schedule property. The plaintiff learnt that the defendants 1 and 2 have approched the Corporation for transfer of khata in respect of the portion occupied by them and 7 two tenants by name Sri.Lingappa and Sri.Feroz. The plaintiff issued notice to the Commissioner of Corporation on 03.02.1996 requesting not to transfer khatha without notice to her. The Corporation authorities have not effected any transfer.
8. It is stated, the defendants have approached the Corporation for transfer of khata based on concocted and created documents said to have been executed by the original plaintiff. The original plaintiff issued legal notice to the 1st defendant denying the execution and existence of the documents like General Power of Attorney, affidavit and other documents. The original plaintiff revoked the licence and called upon the defendants to hand over possession. The defendant No.1 issued reply refusing to vacate the premises and stating that the original plaintiff has sold the 'B' schedule property to 8 the extent of 15' x 40' together with the residential house consisting of three tenaments and the original plaintiff has executed irrevocable GPA dated 26.08.1991 in favour of the 1st defendant and has received consideration amount of Rs.80,000/-.
9. It is stated, the original plaintiff was aged lady and her husband was also aged. They are illiterates, innocent and gullible. The defendants 1 and 2, who are literates, taking undue advantage of the old age and illiteracy, on the pretext of getting her some monetary benefits from the Government, such as, old age pension and loans for purchasing milking cows etc., have obtained thumb impressions on the blank papers and blank stamp papers. The defendants have created the documents like General Power of Attorney, affidavit etc., The original plaintiff has not executed any documents and if any, are 9 obtained by playing fraud. They are not binding on the original plaintiff and her husband. The plaintiff has not received consideration of Rs.80,000/-. The sale transaction in favour of the 2nd defendant is also not binding on the plaintiff. Therefore, the original plaintiff has prayed for declaration and possession.
10. The defendants i.e., the respondents herein have filed their written statement denying the plaint averments and contending that the suit schedule property is not the self acquired property of the original plaintiff Smt.Tulasamma. The suit schedule property was jointly purchased by the father of the 1st defendant and Sri.Mudlagiriyappa through registered sale deed dated 19.08.1959 in the name of Smt.Tulasamma, as there was some problem to purchase the property in the name of Munibyrappa and Mudlagiriyappa. It is stated, the 10 sale consideration of Rs.1,000/- was paid by the father of the 1st defendant as Mudlagiriyappa had no income.
11. In the year 1978, a portion of the suit schedule property was acquired for road widening and compensation was received by Sri.Mudlagiriyappa and original plaintiff and a portion was paid to Sri.Munibyrappa towards his share. It is denied that the defendants 1 and 2 are in possession of the suit schedule property measuring East to West 15' and North to South 40' only on leave and licence after the death of 1st defendant's father Sri.Munibyrappa. Even during the lifetime of Sri.Munibyrappa, the defendants 1 and 2 were residing in the suit schedule property. Sri.Munibyrappa was collecting the rents from the tenants. It is denied that the 1st defendant's mother 11 Smt.Akkamma had no shelter and therefore, the plaintiff and her husband on sympathy permitted the 1st defendant and her mother to stay in a portion of the suit schedule property.
12. It is stated, Sri.Munibyrappa and Sri.Mudlarigiyappa jointly purchased the suit schedule property in the name of Smt. Tulasamma wife of Sri.Mudlagiriyappa. Thereafter, they divided the property orally. Plaintiff's husband got property measuring east to west 45' and north to south 40' including 4 tenaments. Sri.Munibyrappa got property measuring east to west 15' and north to south 40' together with 2 tenaments in the occupation of the tenants. As Munibyrappa had one daughter, larger extent of property was given to Sri.Mudlagiriyappa as he had two sons and three daughters. After division, the parties are in 12 occupation and possession of their respective portions as absolute owners.
13. It is stated, subsequent to the death of Sri.Munibyrappa in 1989, the original plaintiff, her husband Sri. Mudlagiriyappa and their sons started quarreling with the 1st and 2nd defendants alleging that the entire property was purchased by the original plaintiff and the defendants 1 and 2 have no right in the suit schedule property. To maintain cordial relationship, the defendants 1 and 2 agreed to pay a sum of Rs.80,000/- for their share in the property measuring east to west 15' and north to south 40'. As there was no partition deed, it was decided by the Panchayath that the original plaintiff should execute an irrevocable General Power of Attorney and affidavit. At the time of execution of General Power of Attorney and affidavit dated 13 26.09.1991, the 1st defendant paid a sum of Rs.80,000/- in the presence of the witnesses. This arrangement was done to avoid future complications.
14. It is denied that the defendants have approached the Corporation for transfer of khata based on concocted and created documents. It is stated, legal notice has been replied suitably. It is denied that the thumb impression of the original plaintiff was obtained on blank paper and blank stamp papers on the pretext of getting some monetary benefits from the Government like old age pension etc., It is also denied that the General Power of Attorney and affidavit are concocted documents. The defendants are the owners of the 'B' schedule property and therefore, question of claiming possession from the defendants does not arise. 14 Therefore, the defendants have prayed for dismissal of the suit.
15. The defendants 3 and 4 have filed their written statement contending that the 3rd defendant became the tenant of Sri.Munibyrappa since 01.09.1976 on a monthly rent of Rs.25/-. Subsequently, the rent was enhanced to Rs.35/- per month and thereafter, it was enhanced to Rs.200/- per month. The 3rd defendant paid the rent to Sri.Munibyrappa till his death. Thereafter, the 3rd defendant started paying the rents to Smt.Varalakshmi and her mother Smt.Akkamma.
16. The premises in the occupation of defendants 1 and 2 measures east to west 15' and north to south 40' and the 3rd defendant has vacated 15 the premises and handed over possession to the defendants 1 and 2.
17. It is stated, 4th defendant was a tenant under Sri.Munibyrappa since 1985 and he was paying rent of Rs.125/- per month. After the death of Sri.Munibyrappa, 4th defendant started paying rents to defendant No.1 and her mother at the rate of Rs.200/- per month. Therefore, the defendants 3 and 4 have prayed for dismissal of the suit.
18. The Trial Court has framed the following issues:-
1. Whether the plaintiff proves that she is the owner of the schedule A and B properties?
2. Whether the plaintiff proves that the defendant No.1 is in occupation of the property along with her mother as a licencee under the plaintiff?16
3. Whether the defendant No.1 proves that the suit property was purchased by father of defendant No.1 and the husband of plaintiff in the name of the plaintiff?
4. Whether the defendant No.1 proves that there was an oral partition and in that partition, the schedule B property came to be allotted to the father of defendant No.1?
5. Whether the defendant No.1 proves that there was a Panchayat and in pursuance of the direction of panchas, she has paid Rs.80,000/- and got executed the power of attorney and sworn statement in her favour from the plaintiff?
6. Whether the plaintiff proves that there was a fraud or misrepresentation on the part of defendants 1 and 2 and 17 that GPA and sworn affidavit dated 26.09.1991 and the sale deed dated
19.09.1995 in favour of defendant No.2 are null and void and not binding on the plaintiff?
7. Whether the plaintiff is entitled to the relief of declaration and possession sought?
8. What order or decree?
19. The trial Court has answered issue Nos.1, 2, 6 & 7 in the negative and issue Nos.3 to 5 in the affirmative and consequently, has dismissed the suit.
20. Aggrieved by that, the LRs of the original plaintiff Smt.Tulasamma have filed this appeal.
21. The learned counsel for the appellants contended that the impugned judgment and decree cannot be sustained in law. He also submitted that 18 the Trial Court has failed to consider the evidence on record in proper perspective. Further he submitted that the suit schedule property was purchased by Smt.Tulasamma and she was the absolute owner of the suit schedule property. He also submitted that under Section 14(1) of Hindu Succession Act, Smt. Tulasamma became the absolute owner of the suit schedule property. Further he submitted that the defendants have contended that there was division and 'B' schedule property was allotted to the share of Sri.Munibyrappa and thereafter, General Power of Attorney and affidavit were executed. There is no evidence on record to show that there was division. The General Power of Attorney and affidavit are concocted documents. They have been created by obtaining thumb impression on the blank stamp papers on the pretext of getting some monetary 19 benefits from the Government. He also submitted that DW.1 is not the competent witness to speak regarding the earlier partition. Further he submitted that the execution of General Power of Attorney and affidavit are not proved. Therefore, no reliance can be placed on Exs.D1 to D4. He also submitted that Exs.D1 to D3 are concocted documents and they are not binding on the plaintiffs.
22. Placing reliance on the decisions of the Hon'ble Supreme Court reported in 1987 (3) SCC 674, 1987 (3) SCC 684 and 2009 AIR SCW 4471, the learned counsel for the appellants submitted that, the appellant i.e.,Tulasamma is the owner as per Section 14(1) of the Hindu Succession Act.
23. Further placing reliance on the decision of the Hon'ble Supreme Court reported in 2011(4) SCC 20 240, the learned counsel for the appellants submitted that the power of attorney is not proved and therefore, it cannot be relied upon. He therefore submitted that the impugned judgment and decree cannot be sustained in law.
24. As against this, the learned counsel for the respondents 1 and 2 submitted that the impugned judgment and decree does not call for interference. He also submitted that the trial Court on proper consideration of material on record has rightly dismissed the suit and therefore, the impugned judgment and decree does not call for interference. Further he submitted that the original plaintiff has executed the General Power of Attorney and affidavit and thereafter, the 1st defendant has executed the sale deed in favour of the 2nd defendant which are 21 valid. Therefore, the impugned judgment and decree does not call for interference.
25. I have carefully considered the submissions made by the learned counsel for the parties.
26. The points that arise for my consideration are:
1. Whether the GPA and affidavit are null and void?
2. Whether the sale deed executed in favour of the 2nd defendant is binding on the plaintiff?
3. Whether the impugned judgment and decree calls for interference?
27. Point Nos.1 to 3 are considered together. 22
28. It is relevant to note, the suit is for declaration that the General Power of Attorney and affidavit dated 26.08.1991 are null and void and not binding on the original plaintiff. The sale deed dated 19.9.1995 executed by the first defendant in favour of the second defendant is not binding on the original plaintiff. The plaintiff is entitled for possession of the suit 'B' schedule property.
29. The defendants contend that the suit schedule property was jointly purchased by the original plaintiff's husband Sri.Mudlagiriyappa and Sri.Munibyrappa in the name of the original plaintiff Smt.Tulasamma. Thereafter, there was division. Subsequently, after the death of Sri.Munibyrappa, General Power of Attorney and affidavit were executed. The 1st defendant paid a sum of Rs.80,000/- to the original plaintiff. The defendants 1 23 and 2 are in possession and enjoyment of the suit schedule property as its owners and not as licensees as contended by the plaintiff.
30. The plaintiff has examined PW.1 and Exs.P1 to P22 have been marked.
31. The defendants have examined DWs 1 to 5 and Exs.D1 to D14 have been marked.
32. PW.1 has deposed supporting the plaint averments.
33. Similarly, DW.1 has deposed supporting the written statement averments.
34. DW.2 has deposed since from childhood, he has been moving very closely with Mudlagiriyappa and Munibyrappa. He has been procuring milk for Munibyrappa and assisting him in his milk vending 24 business. He has stated that Munibyrappa and Sri.Mudlagiriyappa both of them jointly purchased the suit schedule property in the year 1959 in the name of Smt.Tulasamma. The sale consideration of Rs.1,000/- was paid by Sri.Munibyrappa. They could not purchase the properties in their names as there was some misunderstanding between the families of Sri.Mudlagiriyappa and Sri.Munibyrappa. The oral partition was made and larger portion measuring east to west 45' and north to south 40' including 4 tenaments were allotted to the share of Sri.Mudlagiriyappa as he had two sons and three daughters and smaller portion measuring east to west 15' and north to south 40' with 2 tenaments was allotted to the share of Sri.Munibyrappa. The parties have been in possession and enjoyment of their respective portions as owners. They are 25 collecting rents from their tenants. After the death of Sri.Munibyrappa in the year 1989, the quarrel started again in the family between the grown-up sons of Sri.Mudlagiriyappa and defendants 1 and 2. In the year 1991, he intervened to sort out the differences. One G. Nagaraj who is well wisher of the parties arranged for compromise between the parties. It is stated, both the parties decided to pay a sum of Rs.80,000/- to Smt.Tulasamma and Smt.Tulasamma should execute the General Power of Attorney and affidavit in favour of Smt.Varalakshmi, the first defendnt. Accordingly, the General Power of Attorney and affidavit dated 26.08.1991 were executed. The documents were prepared by Sri.L.S.K.Murthy, Advocate, and it was signed by Smt.Tulasamma before the notary Sri.H.S.Renuka Prasad on 26.08.1991. Sri.C.Nagaraj has attested the said GPA 26 as witness. The amount of Rs.80,000/- was paid to Smt.Tulasamma in consideration that the property measuring east to west 15' and north to south 40' was already in possession of the defendant No.1. He has identified the signature of Smt.Tulasamma as Ex.D1(a). Ex.D2 was also prepared at the same time.
35. Similarly, DW.3 has deposed that there was quarrel between Sri.Munibyrappa and Sri.Mudlagiriyappa and his family members. He sorted out the differences One Chikkahanumaiah was also present. In the presence of both the parties, the compromise was arrived at. Accordingly, by consent of both the parties, it was decided to pay a sum of Rs.80,000/- to Smt.Tulasamma and she should execute the General Power of Attorney and affidavit in favour of the 1st defendant. Thereafter, on 26.08.1991 General Power of Attorney and affidavit 27 were executed. The said documents were prepared by Sri.L.S.K.Murthy and signed by Smt.Tulasamma before the notary Sri.H.S.Renuka Prasad and a sum of Rs.80,000/- was paid to Smt.Tulasamma as consideration for the property measuring east to west 15' and north to south 40' which was already in the possession of the defendant No.1. The plaintiff and her family should not interfere with the property in future.
36. DW.4 is the notary Sri.H.S.Renuka Prasad. He has deposed that Ex.D1 was notarised by him. He has stated that Smt.Tulasamma put her LTM before the notary both in Ex.D1 and Ex.D2. The notary register is maintained by him.
37. The plaintiffs have produced Exs.P1 to P22. Exs.P1, P2, P3, P4, P5 and P6 are tax paid receipts. Ex.P7 is the endorsement dated 05.07.1978. 28 Ex.P8 is the sale deed dated 19.08.1959, executed in favour of Smt.Tulasamma in respect of the suit schedule property. Ex.P9 is the tax paid receipt. Ex.P10 is the death certificate of Smt.Tulasamma. Ex.P11 and Ex.12 are the tax paid receipts. Ex.P13 is the special notice. Ex.P14 is the copy of the legal notice dated 03.02.1996 issued to the Commissioner of Corporation, Bangalore. Ex.P15 is the postal acknowledgement. Ex.P16 is the letter dated 12.04.1996 asking the 2nd defendant to submit his explanation along with the documents. Ex.P17 is the copy of the paper publication. Ex.P18 is the copy of the compliant. Ex.P20 is the endorsement dated 14.08.1996 intimating the 2nd defendant that khata cannot be transferred. Ex.P21 is the copy of the legal notice issued to the defendants 1 and 2. Ex.P22 is the copy of the reply dated 06.03.1996. 29
38. The defendants have produced Exs.D1 to D14. Ex.D1 is the General Power of Attorney executed in favour of the 1st defendant by the plaintiff. Ex.D2 is the affidavit of Smt. Tulasamma sworn before the notary. Ex.D3 is the copy of the registered sale deed dated 19.09.1995 executed in favour of the second defendant. Ex.D4 is the rectification dated 13.05.1996. Exs.D5 & D6 are the tax paid receipts. Ex.D7 is the certificate indicating that the property No.13/1 stands in the name of Sri.C.Nagaraj, the second defendant. Ex.D8 is the assessment extract. It shows that the property No.13/1 stands in the name of 2nd defendant Sri.C.Nagaraj. Ex.D9 is the voter list. The names of Sri.Munibyrappa, Smt.Akkamma, Sri.Mudlagiriyappa and Smt.Tulasamma are shown. Ex.D10 is the water 30 bill. Ex.D11 is the electricity bill. Ex.D14 is the ration card.
39. From the evidence of record, it is clear, the suit schedule property has been purchased in the name of the original plaintiff Smt.Tulasamma through Ex.P8 sale deed. The khata of the suit schedule property has been transferred in the name of Smt.Tulasamma, the original plaintiff and she has paid the tax. It is contended by the original plaintiff that she is the absolute owner of the suit schedule property and the defendants have no right, title and interest in the suit schedule property. The defendants have contended that the suit schedule property was purchased in the name of Smt.Tulasamma by Sri.Munibyrappa and Sri. Mudlagiriyappa. Thereafter, the suit schedule property was divided between the family members of Sri.Munibyrappa and 31 Sri.Mudlagiriyappa after the death of Sri.Munibyrappa. DWs.2 and 3 have deposed regarding the partition. They have sorted out the problem between the families of Sri.Munibyrappa and Sri.Mudlagiriyappa. They have stated, after the death of Sri.Munibyrappa, there was complication between the family members of Sri.Munibyrappa and Sri.Mudlagiriyappa and they were asked to sort out the problem. In the presence of the parties, a Panchayath was held and compromise was arrived at and the property was divided. It was agreed that the original plaintiff should be paid a sum of Rs.80,000/- and she should execute the GPA and affidavit in favour of the 1st defendant. Accordingly, GPA and affidavits were executed before the notary and they have attested. Ex.D1 is the GPA. DWs 2 and 3 have identified their signatures in Ex.D1. They 32 have stated, a sum of Rs.80,000/- was paid to Smt.Tulasamma before the notary. The notary has also deposed that Ex.D1 was notarised by him and he has identified his signature as Ex.D1(d). Further he has stated Smt.Tulasamma put her LTM to Ex.D1. It is at Ex.D1(a). Therefore, it is clear, Ex.D1 was executed before the notary and it was notarised by DW.4. The contention of the plaintiffs that the signatures were obtained on the blank papers and blank stamp papers cannot be accepted. The documents have been executed before the notary. There is presumption under Section 85 of the Evidence Act regarding Exs.D1 and D2. Ex.D1 is the power of attorney authorizing the 1st defendant to sell and manage the property. It is irrevocable. The GPA and affidavit also show that the amount has been paid. Therefore, the plaintiffs cannot contend that 33 the original plaintiff was the absolute owner of the suit schedule property and the defendants have no right, title or interest in the suit schedule property. Exs.D1 and D2 are valid documents and they bind the original plaintiff and also her L.Rs.
40. The sale deed Ex.D3 is executed in favour of the 2nd defendant. The original plaintiff has executed GPA and affidavit. Exs.D1 and D2 are valid documents. Therefore, the sale deed executed in favour of the second defendant is valid and binding on the original plaintiff and also her L.Rs.
41. The trial Court on proper consideration of the material on record has rightly dismissed the suit. Therefore, the impugned judgment and decree does not call for interference. There is no merit in this 34 appeal and therefore, the appeal is liable to be dismissed.
Accordingly, the appeal is dismissed. I.A.1/2003 is filed by the appellants for additional evidence. The documents sought to be produced are xerox copies and they cannot be allowed. Accordingly, I.A.1/2003 is hereby rejected.
Sd/-
JUDGE Pv/-