Bangalore District Court
Smt.Sulochana Bai vs Sri.Suryoji Rao on 2 July, 2016
IN THE COURT OF XXII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU (C.C.H.No.7).
Dated: This the 2nd Day of July, 2016.
Present: Sri. M.S.Patil, B.Sc., LL.B.
XXII Addl.City Civil & Sessions Judge.
Bengaluru.
O. S. No. 5 8 1 0 / 2008
Plaintiffs 1. Smt.Sulochana Bai,
w/o late Dawalath Rao,
Since dead, her legal representatives
plaintiff Nos.2 and 3 and defendants
1 & 2 are on record.
2. Sri.Sathyanarayan,
S/o. Dawalath Rao,
Aged about 56 years.
3. Smt.Jaya Bai,
D/o. late Dawalath Rao,
Aged about 50 years,
The plaintiffs 2 and 3 are
R/at No.7/54-3, 3rd Cross,
K.B.Temple, Rajajinagar 6th Block,
Bengaluru - 10.
by Sri.H.V.Shyame Gowda, Advocate.
Vs.
Defendants 1. Sri.Suryoji Rao,
S/o. late Dawalath Rao,
Aged about 65 years.
2. Sri.Subba Rao,
S/o. late Dawalath Rao,
Aged about 65 years.
2 O.S.No.5810/2008
Defendants 1 and 2 are
R/at No.7/54-3, 3rd Cross, K.B.Temple,
Rajajinagar 6th Block,
Bengaluru - 10.
3. Janardhan Rao,
s/o.Subrami Rao,
aged about 44 years.
4. Venkoba Rao,
s/o.Subrami Rao,
aged about 42 years.
5. Ammu Bai,
d/o.Subrami Rao,
aged about 39 years.
6. Hari Rao,
s/o.Subrami Rao,
aged about 36 years.
Defendants 3 to 6 are
r/at No.8/54-3, 3rd Cross,
K.B.Temple, Rajajinagar 6th Block,
Bengaluru-10.
D1, 2-by Sri.P.Manohar5rtr, Advocate.
D3 to 6- by Sri.A.S., Advocate.
Date of institution of suit 27-08-2008
Nature of the suit Partition and separate
possession and
Declaration.
Date of commencement of 12-06-2016
recording of evidence
Date on which Judgment 02-07-2016
was pronounced
Total duration Days Months Years
05 10 07
3 O.S.No.5810/2008
JUDGMENT
This suit filed by the plaintiffs is for partition and separate possession of plaintiffs' 1/5th share each in the suit schedule property and to put them into possession of the same and to declare that the gift deeds dated 25-4-2008 are sham, void, fraudulent and are not binding on the plaintiffs and for costs and any other reliefs, which Court deems fit in the circumstances of the case.
2. The brief facts of the plaint averments are that, Dawlath Rao and his wife Sulochana Bai had three sons and two daughters, by name Sathyanarayan (plaintiff No.2), Jaya Bai (plaintiff No.3), Suryoji Rao (defendant No.1), Subbara Rao (defendant No.2) and deceased Parvathi Bai and her legal representatives are defendants 3 to 6 and that, Dawlath Rao has died leaving behind Sulochana Bai and her children and that, said Sulochana Bai, wife of Dawalath Rao is plaintiff No.1 in this suit and that, suit property is purchased under registered Sale Deed Dated:30-5-1974 in the name of 1st plaintiff out of sale proceeds obtained by sale of property of Tamil Nadu and that, plaintiffs and defendants formed Hindu Joint Family and suit property is the joint family property of plaintiffs and defendants and that, defendants, without giving share in the suit property to the plaintiffs 2 and 3, have fraudulently got gift deeds said to have been executed by plaintiff 4 O.S.No.5810/2008 No.1-Sulochana Bai in their favour, in respect of suit property and therefore, said gift deeds said to have been executed by plaintiff No.1-Sulochana Bai in favour of defendants 1 and 2, are not binding upon the plaintiffs and that, these defendants 1 and 2, instead of giving share in the suit property, have got their names entered in BBMP in respect of suit property. Hence, this suit.
3. Defendants 1 and 2 have jointly filed their written statement wherein they deny that, the plaintiffs and defendants form Hindu Joint Family and further they deny that, the suit property is joint family property of plaintiffs and defendants and contend that, elder sister of plaintiffs 2 and 3 and defendants 1 and 2, by name Parvathi Bai, is now dead and her legal representatives are not brought on record and therefore, the suit is bad for non- joinder of necessary parties and further they deny that, the suit property is purchased in the name of plaintiff No.1 out of proceeds of sale of Tamil Nadu property and further contend that, the suit property is self acquired property of plaintiff No.1-Sulochana Bai, as she was working as an Attender (Aaya) in Government Primary School and therefore, she was able to earn money and out of her self earnings, she has purchased the suit property and therefore, out of love and affection, plaintiff No.1-Sulochana Bai has executed registered gift deeds dated 25-4-2008 in 5 O.S.No.5810/2008 favour of defendants 1 and 2 in respect of suit property and since then, defendants 1 and 2 are in possession of suit property and got their names entered in BBMP and other revenue records in respect of suit property. On these grounds, it is prayed for dismissal of this suit, with costs.
4. On the basis of these rival contentions taken by the parties, following Issues are framed:
1. Whether plaintiffs prove that, suit property is undivided joint family property of the plaintiffs and defendants?
2. Whether plaintiffs prove that, registered gift deeds dated 25-4-2008 executed in favour of defendant No.1 and defendant No.2 are sham, void and fraudulent?
3. Whether plaintiffs have a share in the suit property?
4. Whether suit is bad for non-joinder of necessary parties?
5. Whether suit is bad for seeking partition parking?
6. Whether defendants prove that, registered gift deeds dated 25-4-2008 are voluntarily and validly executed by the 1st plaintiff in their favour?
7. Whether court fee paid is insufficient?
8. What Decree or Order?6 O.S.No.5810/2008
5. The plaintiffs, to prove their case, examined 3rd plaintiff as P.W.1 and relied upon 26 documents marked as Exs.P1 to P26 and closed their side.
On the other hand, the Defendants No.1 and 2examined 2nd defendant with another witness as D.Ws.1 and 2 respectively and relied upon 12 documents marked as Exs.D1 to D12 and closed their side.
6. Heard arguments of Learned Counsels for both the parties.
7. My answer to the above Issues are as under:
Issue No.1 - in the Negative;
Issue No.2 - in the Negative;
Issue No.3 - in the Negative;
Issue No.4 - in the Negative;
Issue No.5 - in the Negative;
Issue No.6 - in the Affirmative;
Issue No.7 - in the Negative;
Issue No.8 - as per Final Order below;
for the following:7 O.S.No.5810/2008
Reasons
8. Admitted facts are that, the plaintiff No.1 is dead and the other plaintiffs and defendants 1 and 2 are the legal representatives of deceased plaintiff No.1 and that, sisters of plaintiffs and defendants 1 and 2, by name Parvathi Bai, is dead and defendants 3 to 6 are the legal representatives of deceased Parvathi Bai.
9. Issue No. 1 : The plaintiffs contend that, the suit property is undivided joint family property of plaintiffs and defendants and the same is purchased out of sale proceeds obtained by sale of property of joint family situated in Tamil Nadu.
10. In order to substantiate this contention, the plaintiffs have examined 3rd plaintiff as P.W.1, who has reiterated the same facts in her evidence.
11. The plaintiffs have relied upon Exs.P18, P20, P24, P25 and P26, which are, copy of sale deed dated 10-5-1978 (Tamil Nadu property); copy of sale deed dated 25-3-1980 (Tamil Nadu property); notice of payment of gratuity of father of plaintiffs 2, 3, defendants 1 and 2; termination of employment of father of plaintiffs 2, 3, defendants 1 and 2 and nomination form of father of plaintiffs 2, 3, defendants 1 and 2.
8 O.S.No.5810/200812. On the other hand, defendants 1 and 2 contend that, the suit property is the self acquired property of their mother Sulochana Bai (plaintiff No.1), as she was working as Aaya (Attender in Government Primary School) and she was getting salary and out of her salaried income, she has purchased the suit property and thus, the suit property is her self acquired property.
13. In order to substantiate this contention, defendants examined defendant No.2 as D.W.1, who has reiterated the same facts in his evidence.
14. Further, defendants 1 and 2 have relied upon Ex.D3-certified copy of sale deed dated 10-5-1978 in respect of Tamil Nadu property and Ex.D3 is same of Ex.P3. Further, defendants have relied upon the admission of P.Ws.2 and 3 in cross- examination of D.W.1, to the effect that, mother of plaintiffs 1 and 2 was working as Attender (Aaya) in Government Primary School. The plaintiffs have not denied this fact in their evidence, i.e., the mother of plaintiffs 1 and 2 was working as Aaya (Attender) in the Government Primary School, during her lifetime.
15. The plaintiffs rely upon Exs.P18 and P20, which are copies of registered sale deeds dated 10-5-1978 and 25-3-1980, respectively. They do not help plaintiffs to prove their contention that, suit property is purchased out of sale proceeds of Tamil 9 O.S.No.5810/2008 Nadu property, since suit property is purchased in 1974, which is earlier to sale of Tamil Nadu properties, which are sold in 1978 and 1980. Exs.P24, P25 and P26 do not show how much amount is received by father of plaintiffs and same is utilized for purchase of suit properties.
16. On the other hand, contention of defendants 1 and 2 that, suit property is self acquired property of plaintiff No.1, has got much force in it, since defendants contend that, suit property is purchased by plaintiff No.1 out of her personal income, as she was working as Attender (Aaya) in Primacy School, during her life time. Accordingly, Issue No.1 is held in the Negative.
17. Issue Nos. 2 and 6 : The plaintiffs contend that, registered gift deeds dated 25-4-2008 executed by 1st plaintiff, in favour of defendants 1 and 2 are sham, void and fraudulent.
18. In order to substantiate this contention, the plaintiffs have not produced any evidence.
19. On the other hand, defendants contend that, said registered gift deeds dated 25-4-2008 are voluntarily and validly executed by 1st plaintiff in their favour and they are genuine documents.
10 O.S.No.5810/200820. To substantiate their contention, defendants 1 and 2 rely upon oral evidence of D.W.2-attesting witness to Exs.P5 and P6 (Exs.D5 and D6), who deposes about execution of gift deeds by plaintiff No.1 in favour of defendants 1 and 2, respectively, in his presence and he has signed to them as one of the attesting witnesses.
21. Hence, in view of absence of evidence produced by plaintiffs and in view of rebuttal evidence produced by defendants, by examining D.W.2 to prove Exs.P5 and P6, I hold Issue No.2 in the Negative and Issue No.6 in the Affirmative.
22. Issue No. 3 : In view of my answer to Issue Nos.1 and 2 in the Negative, I hold this Issue in the Negative.
23. Issue No. 4 : In view of impleading defendants 3 to 6 subsequently by plaintiffs, I hold this Issue in the Negative.
24. Issue No. 5 : The defendants have not produced any evidence to prove this Issue. Hence, this Issue is held in the Negative.
25. Issue No. 7 : Hon'ble High Court in Order dated 7-3-2014 in W.P.Nos.9294-9295 of 2012 (GM-CPC) has held that, court fee paid by plaintiffs is proper. Hence, I hold this issue in the Negative.
11 O.S.No.5810/200826. Learned Counsel for plaintiffs has relied upon the following citations:
1). Baby Ammal vs. Rajan Asari reported in 1997 (2) SCC 636 wherein it is held that:
"Transfer of Property Act, 1882-Ss.122 and 123-Gift-Essentials of-Absence of proof of delivery and acceptance of possession of the gifted property-Plaintiff retaining both the title and possession of the property with her-Held, in the circumstances, the deed in question cannot be construed to be a gift deed-At best, it would be only a license-Licence."
2). B.C.Ravindra and another vs. Deviramma, reported in 2010 (5) KLJ 11 wherein it is held that:
" (A) Specific Relief Act, 1963, Sections 34 and 31-Declaratin of registered gift deed alleged to have been got executed by playing fraud as void-Suit for relief of-Maintainability of suit for mere declaration without seeking further relief of cancellation of void gift deed-Such suit, held, is maintainable and once registered instrument is declared void there is no necessity to seek its cancellation-Once registered deed is declared void on ground of fraud, Court can order it t be delivered up and cancelled, and to send copy of its decree to Registrar concerned to enable him to make necessary note in his books. "12 O.S.No.5810/2008
3). Smt.Nishamani Singh vs. Nishamani Dibya and others, reported in AIR 2003 (Orissa) 123 wherein it is held that:
"Transfer of Property Act (4 of 1882), S.123- Gift deed-Execution-Validity-Donor specifically denying execution of document-She pleaded that donee had taken her a signatures on document after giving her understanding that it was merely a power of attorney for managing her properties-It was thus not conscious execution of Gift deed-Donee also not shown to have remained in possession of property following execution-Valid attestation also not proved-No benefit can be derived by donee from such deed."
4). Ram Chandra Singh vs. Savitri Devi and Ors. reported in SAR 2004 (Civil) 1 wherein it is held that:
"B. Fraud on Court-Fraud as is well-known vitiates every solemn act-Fraud and justice never dwells together-It is also well settled that misrepresentation itself amounts to fraud- Indeed, innocent misrepresentation may also give reason to claim relief against fraud-An act of fraud on court is always reviewed seriously."13 O.S.No.5810/2008
27. In this context, Learned Counsel for the defendants 1 and 2 has relied upon the following citations:
1). Revappa vs. Madhava Rao and another, reported in AIR 1960 Mysore page 97, wherein it is held that:
"(b) T.P.Act (1882), S.123-Gift of immoveable property by person governed by Hindu Law-
Dellivery of possession is not essential -(Hindu Law -Gift).
Para (7) At one stage, Mr.Zakaulla, the learned counsel for the appellant, argued that transfer of possession is an essential ingredient for completing and validating a gift deed and that without such a transfer, the gift is invalid. But on a further consideration he gave up this contention and in my opinion, very rightly too.
Section 123 of the Transfer of Property Act lays down that for the purpose of making a gift of immoveable property, the transfer must be effected by registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Contrasting this with the provision for transfer of moveable property, also mentioned later in the said section, which 14 O.S.No.5810/2008 contemplates the transfer either by a registered instrument or by delivery of possession, I find that the emphasis so far as the transfer of immoveable property under the general law is on the execution of an instrument properly executed and not so much on the actual delivery of the property."
2). Surendra Kumar vs. Nathulal, reported in AIR 2001 Supreme Court 2040 wherein it is held that:
"S.123-Evidence Act (1 of 1872), S.68, Proviso- Gift of immoveable property-Registered deed of gift signed by donor and attested by witnesses -Is valid-Donor specifically admitted execution of gift can be said to be duly proved even if one of attesting witness is not called for proving its execution. "
3). Prem Singh and others, vs. Birbal and others, reported in (2006) 5 Supreme Court Cases 353 wherein it is held that:
" D. Specific Relief Act, 1963-S.31-Void ab initio document-Need, if any, for a decree setting aside such a document-Held, there is no need of a decree in such a case, as such document would be a nullity.15 O.S.No.5810/2008
E. Contract Act, 1872-Ss.17 to 19-Fraudulent misrepresentation - Document/ Transaction when void and when voidable- Held, when fraudulent misrepresentation is with respect to character of document, it is void, and when it is with respect to contents of document, it is voidable-Deeds and documents.
F. Specific Relief Act, 1963-S.31- Cancellation of registered document- Presumption is valid execution of registered document-Existence of-Onus of rebuttal of the presumption, held, is on person who leads evidence to rebut the presumption-Evidence Act, 1872, S.114."
4). Ashokan vs.Lakshmikutty and others, reported in 2007 (13) SCC 210, wherein it is held that:
"A. "Transfer of Property Act. 1882- Ss.122 and 123-"Gift"-Elements of, restated- Acceptance of by donee-Mode of proof of- Averment of such acceptance in the gift deed, if sufficient-Held, there may be various means to prove the acceptance and it is not necessary to prove any overt act in respect thereof- Father executing a registered deed of gift in favour of son and averring therein that the property gifted had been handed over to, and 16 O.S.No.5810/2008 accepted by, the donee-Donor father aware of the terms and nature of the document and donee son also aware f the recitals in the said deed-In such circumstances, held, a presumption of the correctness of the said averment in the deed arose-Hence, onus of proof would lie not on the donee but on the donor and would be a heavy one-Evidence Act, 1872, Ss.91 and 92-Gift Tax Act, 1958-S.2(xii)- Muslim Law-Gift.
B. Transfer of Property Act, 1882- S.122, 123 and 127-Gift deed-Conditions precedent for validity of and grounds for rescission of a completed and valid gift-Irrelevance of subsequent conduct of donee-Held, gift deed should be: (i) without any consideration, (ii) voluntary, and (iii) not induced by undue influence-Father, out of love and affection for his son and also to enable the latter to live a peaceful life, executing a registered deed of gift in favour of son-No proof of undue influence to bring the case within the purview of S.16, Contract Act-In such circumstances keeping in view the relations of the parties and the fact of long absence of the donee from India, held, possession of the gift deed and payment of tax by the donor or non- mutation of the donee's name in revenue records not by themselves sufficient to show 17 O.S.No.5810/2008 that the execution of the gift deed was involuntary-Hence, gift deed could not be rescinded on the premise that the gift was an onerous gift and that the donee had failed to fulfill the condition for the gift viz. contributing towards the marriage of his (donee's) sister the sum specified-Contract Act, 1872-S.16-Evidence Act, 1872-S.114- Presumtions-Gift deed-Presumption regarding averments in-Gift Tax Act, 1958, S.2(xii)."
5). Naramadaben Maganlal Thakker vs. Pranjivandas Maganlal Thakker and others, reported in 1997 (2) Supreme Court Cases 255 wherein it is held that:
"A. Transfer of Property Act, 1882-Ss.122, 123-Gift-If and when becomes complete- Cancellation meanwhile-If valid-Conditional gift deed executed retaining possession and enjoyment of the property during donor's lifetime-A subsequent deed executed by the donor within a month canceling the gift deed on non-fulfillment f the conditions subject to which there was an oral understanding between donor and donee-Thereafter a Will executed in respect of the same property in favour of appellant and his brother-Held, gift was not complete and the deed was valid cancelled and became inoperative. "18 O.S.No.5810/2008
6). B.Balakrishnan vs. K.Kamalam and others, reported in 2004 (1) Supreme Court Cases 581, wherein it is held that:
"B. Transfer of Property Act, 1882-S.6(d)- Scope-Gift of property by absolute owner thereof reserving its possession and enjoyment to herself during her lifetime-Held, not covered-Hence, such gift is permissible. "
7). Renikuntla Rajamma vs. K.Sarwanamma, reported in (2014) 9 SCC 445, wherein it is held that:
"A. Property Law-Transfer of Property Act, 1882-Ss.123, 122 and 1929)-Gift of immoveable property reserving life interest in property for donor, valid-Delivery of possession to donee not essential condition- Rule of Hindu law making transfer of possession a condition for completion of a valid gift stood superseded by S.123 after the 1929 amended to S.129-Property gifted by retaining possession and right to receive rents of property by donor during donor's lifetime- Held, gift valid-Family and Personal laws-Hindu Law-Gift.19 O.S.No.5810/2008
B. Property Law-Transfer of Property Act, 1882-Ss.122 and q123-Gift-Retention of life interest by donor, held, valid.
C. Property Law-Transfer of Property Act, 1882-S.126-Irrevocabililty of valid gift- Affirmed."
28. The principles laid down in the above citations are followed by me while deciding the Issues in this suit.
29. Issue No. 8 : In view of the foregoing reasons and in the result, I proceed to pass the following:
ORDER Suit of the plaintiffs is dismissed.
No order as to costs.
(Dictated to the Judgment Writer and also typed to my manuscript by the J.W., transcribed and computerised print-out taken thereof is corrected, signed and then pronounced by me in Open Court on this the 2nd day of July, 2016.) (M.S.PATIL) XXII Addl. City Civil & Sessions Judge, *sb Bengaluru.20 O.S.No.5810/2008
ANNEXURE List of witnesses examined for the plaintiffs:
P.W.1 Smt.Jaya Bai List of witnesses examined for defendants:
D.W.1 Subbarao D.W.2 Y.Kanappa
List of documents exhibited for the plaintiff:
Ex.P1 - copy of sale deed dated 30-5-1974 executed by Girijamma and others in favour of Venkataathnaiah Ex.P2 - Genealogy of the family Ex.P3 - Tax paid receipt Ex.P4 - Notice issued by BBMP Ex.P5 -certified copy of Gift Deed dated 25-4-2008 executed by 1st plaintiff in favour of defendant No.1 in respect of portion of suit property.
Exs.P5(a)&(b)-photo of 1st plaintiff and 1st defendant Ex.P6 - certified copy of Gift Deed dated 25-4-2008 executed by 1st plaintiff in favour of defendant No.2 in respect of portion of suit property.
Exs.P6(a)&(b)-Photo of 1st plaintiff and 1st defendant.
Exs.P7 & P8 - Khatha Certificate and Khatha extract in the name of 1st defendant.
Exs.P9 & P10 - Khatha certificate and Khatha extract in the name of 2nd defendant.21 O.S.No.5810/2008
Exs.P11 & P12 - 2 Medical bills.
Exs.P13 & P14 - 2 Scanning reports.
Exs.P15 to P17 - 3 Medical bills Ex.P18- certified copy of sale deed dated 10-5-1978 executed by Dawolath Rao and others in favour of P.Natarajan in respect of properties at Tamil Nadu.
Ex.P19 - Translation of Ex.P18.
Ex.P20 - certified copy of Sale Deed dated 25-3-1980, in Tamil language3 Exs.P21 to P23 - 3 receipts.
Ex.P24 - Notice for Payment of Gratuity Ex.P25 - Order of Termination of Employment Ex.P26 - Nomination Form 'F' List of documents marked for defendants:
Ex.D1 - Pass Book of plaintiff No.1 maintained in Syndicate Bank Ex.D2 - Sale Deed dated 30.05.1974 executed by V.Perumal in favour of 1st plaintiff Ex.D3 - copy of sale deed dated 10-5-1978 executed by N.Tholath Rao and 5 others in favour of P.Natarajan.
Ex.D3(a) Translated copy of Ex.D3 Ex.D4 - copy of Sale Deed dated 21-8-1998 executed by R.Narayana Reddy and others in favour of G.Gubender Rao Ex.D4(a) - Translated copy of Ex.D4 22 O.S.No.5810/2008 Ex.D5 - Gift Deed dated 25.04.2008 executed by 1st plaintiff in favour of 1st defendant. Exs.D5(a)&(b)-photos of 1st plaintiff and 1st defendant Ex.D5(c) - Signature of D.W.2. Ex.D5(d) - photo of 1st plaintiff Ex.D5(e) - Photo of 1st defendant in Ex.D5 Ex.D6 - Gift Deed dated 25.04.2008 executed by 1st plaintiff in favour of 2nd defendant Exs.D(a) & (b) - Signature of 1st plaintiff and D.W.1 Ex.D6(c) - signature of D.W.2 Ex.D6(d) - signature of 1st plaintiff Ex.D6(e) - photograph of 2nd defendant Ex.D7 - khatha certificate of portion of suit property standing in the name of 1st defendant Ex.D8 - khatha extract standing in the name of 1st defendant Ex.D9 - Encumbrance certificate Ex.D10 - Khatha certificate standing in 2nd defendant's name pertaining to portion of suit property Ex.D11 - Khatha extract standing in the name of 2nd defendant.
Ex.D12 - Encumbrance certificate (M.S.PATIL) XXII Addl. City Civil & Sessions Judge, Bengaluru.23 O.S.No.5810/2008
....-2016 Judgment passed and pronounced in Open Court. (vide separate Judgment). Operative portion thereof reads as under:
Order XXXXXXXXXXX XXII A.C.C. & S.J., Bengaluru.