Bangalore District Court
Thimmaiah vs Govindaraju on 3 December, 2024
Dr.
1
O.S.No.4019/2019
KABC010180172019
IN THE COURT OF THE XIV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, AT BENGALURU (CCH-28)
Present : Smt. A.M. NALINI KUMARI, B.A.L, LL.M, PGD in IR & PM,
XIV Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 3rd day of December, 2024
O.S.No. 4019/2019
Plaintiff: Thimmaiah,
S/o. Late Ramaiah,
Aged about 59 years,
R/at Kempadyapanahalli village,
Ganakal Post, Bidadi Hobli,
Ramanagara Taluk & District.
(By Sri. R.K.Y.C. Advocate)
V/s.
Defendant: Govindaraju,
S/o. Late Ramaiah,
Aged about 46 years,
R/at Kempadyapanahalli village,
Ganakal Post, Bidadi Hobli,
Ramanagara Taluk & District.
(By Sri. M.G.S. Advocate)
Date of Institution of the suit 07/06/2019
Dr.
2
O.S.No.4019/2019
Nature of the suit Declaration
Date of the commencement 04/12/2021
of recording of the Evidence.
Date on which the judgment
03/12/2024
is pronounced.
Year/s Month/s Days
Total duration 05 05 26
JUDGMENT
This is the suit filed by the Plaintiff seeking the relief of declaration to declare that the Gift Deed dated 03.07.2018 executed by the Plaintiff in respect of item No.1 and 2 of the Suit Schedule Property as null and void.
2. The brief facts of the case is that, Plaintiff and Defendant are said to be blood brothers and that the Plaintiff is the absolute owner and is in peaceful possession and enjoyment of the immovable Property bearing Old Site No.10, formed out of converted land in Sy.No.200/5, measuring East to West 40 feet, North to South on the Eastern side 59 feet, Western side 61 feet, totally measuring 2400 Sft., situated at Kengeri Village, Kengeri Hobli and falling under the jurisdiction of BBMP. And that the Property is in two items ie., item No.1 and 2. And item No.1 is said to have been acquired by the Plaintiff on the basis of a Dr. 3 O.S.No.4019/2019 Registered Sale Deed dated 13.08.2012 and that he had acquired item No.2 by virtue of another Registered Sale Deed dated 09.04.2012 and that on the basis of self acquisition Plaintiff was enjoying the Suit Schedule Property as its absolute owner. And that the Plaintiff is an illiterate person, having no worldly knowledge except for affixing the signature. Taking undue advantage of the same, the Defendant is said to have taken the Plaintiff to the Sub-Registrar's Office and has got the Gift Deed executed in his favour in respect of Site No.16 and on the basis of the said Gift Deed, the Defendant has also secured the khata in his name.
3. It is further contended by the Plaintiff that, the Plaintiff being under the bonafide impression that the Defendant has executed a Gift Deed in his favour and that the Defendant has provided the Gift Deed dated 03.07.2018 executed by the Defendant in favour of Plaintiff, and that the Plaintiff has put up a residential house consisting of two floors in item No.2 and he has also obtained electricity connection and water connection in his name and that the original documents are all standing in the name of the Plaintiff. And on enquriy, Plaintiff came to know that the Defendant is intending to sell the Suit Schedule Property by Dr. 4 O.S.No.4019/2019 playing fraud upon the Plaintiff and misusing the innocence of the Plaintiff, the Defendant has managed to obtain the Gift Deed dated 03.07.2018 in his favour in respect of item No.1, and another Gift Deed dated 03.07.2018 in respect of item No.2 as well. Therefore, the Plaintiff claims that the Defendant has played fraud and obtained the said Gift Deeds. Therefore, on the basis of cause of action said to have arisen on 03.07.2018 and 28.05.2019 the Plaintiff has approached this Court for the relief of declaration to declare that the Gift Deed dated 03.07.2018 in respect of item No.1 and 2 in favour of the Defendant as null and void and illegal.
4. The Defendant appeared through his counsel and has filed the Written Statement denying the entire plaint averments contending that the suit of the Plaintiff is not maintainable and admitted the relationship with the Plaintiff as related to each other as brothers. And further admitted that Plaintiff had executed a Registered Gift Deed on 13.08.2012 in his favour and the Defendant has further contended that the mother of the Plaintiff and Defendant by name Smt. Lakshmamma is said to be the absolute owner of the suit Property bearing Sy.No.105/2A1, presently No.105/2A18 measuring 6 acres of Dr. 5 O.S.No.4019/2019 Property of Bannikuppa village, Bidadi Hobli, Ramanagara Taluk, which Property was acquired under a partition from her father late Narasimhaiah, vide partition deed dated 10.11.1970.
5. It is also the case of the Defendant that, his mother entered into an Agreement of Sale with her vendor Sri. S.K. Sinha, who in turn had filed a suit against their mother and the Plaintiff and the Defendant herein in O.S.No. 231/2005 and the suit filed by the said S.K. Sinha came to be dismissed and on the order of dismissal, said S.K. Sinha is said to have preferred an appeal in RFA No.186/2009 and that in the said RFA No.186/2009, by virtue of compromise memo dated 16.02.2012 entered into between the parties, the said RFA No.186/2009 came to be disposed, and a sum of Rs.2,48,00,000/- was awarded towards sale consideration of the said Property and a deed was Registered for the amount of Rs.2,48,00,000/-. And said consideration amount was received on behalf of the mother, by the Plaintiff since he was the Kartha and managing the Joint Family and also the accounts. And out of the sale consideration, the Plaintiff is said to have purchased the suit Property on the basis of the Sale Deed dated 13.08.2012 and another site No.15 vide Sale Deed dated 25.07.2012 and another adjacent site Dr. 6 O.S.No.4019/2019 No.16 was also purchased and Registered in the name of the Defendant as on 25.07.2012. And that even when their mother was alive and further contended that a Gift Deed is said to have been executed in respect of agricultural Property bearing Sy.No.58/1, 58/3, 3/3, 43/2 and 3/5 which is said to have been dated 07/07/2010 and that the sister of the Plaintiff had filed a suit against their mother and on the basis of panchayath, Plaintiff agreed to execute a Registered Gift Deed dated 03.07.2018 in respect of the Suit Schedule Property in favour of the Defendant and thereby asked to return the original Sale Deed dated 20.04.2005, 13.08.2012 and 09.04.2012 acquired by the Plaintiff in respect of the Property gifted to him vide Gift Deeds dated 03.07.2018 and he had promised to return the said documents as its was produced by him, in the said suit filed by his sister in the Court of Senior Civil Judge, Ramanagar, and that even it is also contended by the Defendant that, even during the lifetime of the mother of the Plaintiff and Defendant the Plaintiff was managing the accounts and that he had taken a General Power of Attorney from his mother to attend the Court case and secretly purchased the properties in Sy.No.30/5 measuring 5 guntas of Borehalli village, for a sale consideration amount of Rs.12,50,000/- and another Property to an extent of 3½ guntas Dr. 7 O.S.No.4019/2019 at Tavarekere for a sum of Rs.3,50,000/- and that the Plaintiff in order to knock of the Property of their mother playing fraud upon the Defendant is said to have purchased the Property independently in the amount of the mother and thereby when the Defendant questioned it, and as such the Plaintiff has executed the Gift Deed in his favour and also contended that the Defendant never intended to sell the suit properties. Therefore, on these and other grounds the Defendant has sought to dismiss the above suit.
6. Based upon the above pleadings of the parties, the following Issues have been framed :
1. Whether Plaintiff proves that the Gift Deeds dated 03/07/2018 is illegally obtained from the Plaintiff in respect of Suit Schedule item No.1 and 2?
2. Whether suit is bad for non joinder of necessary and proper parties?
3. Whether the Plaintiff is entitled for the relief sought in the suit?
4. What order or decree?
Dr. 8 O.S.No.4019/2019
7. The Plaintiff in order to substantiate the issues casted upon the Plaintiff, has examined himself as P.W.1 and got marked Ex.P1 to P20 documents. Per contra, the Defendant has examined himself as D.W.1 and got marked Ex.D1 to D8 documents and also got examined one A. Venkatesh as D.W.2.
8. Heard the arguments of Learned counsel for the Plaintiff and the Learned Counsel for the Defendant.
9. The Learned Counsel for the Defendant has relied upon two citations in support of his case.
1. ILR 1987 KAR 3892 in case of Narayanamma Vs. Papanna
2. 2002 SCC Online KAR 56 in case of Patel Thippeswamy Vs. Gangamma and others.
10. Having perused the materials available on record, my findings to the above Issues are as under:
Issue No.1 .. In the negative Issue No.2 .. In the affirmative Issue No.3 .. Not entitled Issue No.4 .. As per final order, for the following:
Dr. 9 O.S.No.4019/2019 REASONS
11. Issue No.1 ; This issue is upon the Plaintiff to prove that the Gift Deed dated 03.07.2018 is illegally obtained from the Plaintiff in respect of suit schedule item No.1 and 2. In order to substantiate the issue No.1, which is casted upon the Plaintiff to prove that the Gift Deed dated 03.07.2018 is illegally obtained from the Plaintiff in respect of Suit Schedule item No.1 and 2 is concerned has reiterated his plaint averments and examined himself as P.W.1 and got marked Ex.P1 to P20 documents.
12. Before looking into the ocular evidence, it is necessary to look to the documentary evidence placed on record. Ex.P1 is the original Sale Deed dated 09.04.2012 effected in the name of the Plaintiff Thimmaiah by one Sri. Kenchappa by way of Sale Deed in respect of Property bearing khata No.200/1, Property No.211/A measuring East to West 40 feet, North to South 15 feet, totally measuring 600 Sft., bounded on East by Road, West by Property bearing No.216/A, North by KHB Road, South by Property bearing No.211. Further Ex.P2 is another Registered Sale Deed executed in respect of the Plaintiff as on 13.08.2012 by one Smt. Padmaja Srikanth in respect of Property bearing No.200/5 measuring East to West 40 feet, North to South 15 Dr. 10 O.S.No.4019/2019 feet on the Western side 61 feet, totally measuring 2400 Sft., which Property is also said to have been converted land. Ex.P3 is the water connection receipt, reflecting the name of Plaintiff Thimmaiah. Ex.P4 is the rental agreement for the period 3/12/2019 entered into between Plaintiff Thimmaiah and G. Jhansy. Ex.P5 is another rental agreement dated 23/03/2021 in the name of Thimmaiah and one Tejaswini Deepak. Ex.P6 is another certified copy of Registered Sale Deed dated 03.07.2018 executed in favour of the Defendant Govindaraju by the Plaintiff Thimmaiah, which is quested by way of this suit. Ex.P7 is the electricity charges demand register in the name of Plaintiff Thimmaiah. Ex.P8 and 9 are the electricity bills. Ex.P10 is the water card for having obtained water connection. Ex.P11 is the another document relating to having got sanction water connection to the said Property. Ex.P12 is the receipt for having implanted static energy meter in the Property bearing Sy.No. 211/A of Kengeri. Ex.P13 is the electricity charges receipt. Ex.P14 is the certificate issued by the BESCOM reflecting the name of the Plaintiff. Ex.P15 is another rental agreement entered between Thimmaiah the Plaintiff and one Jhansy as on 18.03.2019. Ex.P16 is another rental agreement dated 01.02.2019 in between Thimmaiah and Jhansy dated Dr. 11 O.S.No.4019/2019 01.02.2019. Ex.P17 is another rental agreement in the name of one Smt. Tejaswini executed by Thimmaiah. Ex.P18 is the NCR issued by Bidadi police, Ramanagar. The gist of the complaint is that, Govindaraju the Defendant herein is said to have locked the premises. Ex.P19 is the ration card issued by the Department of Food & Civil Supplies reflecting the name of Hanumakka, W/o. Thimmaiah, residing at No.27, Bidadi Hobli, Kempadyapanahalli village, reflecting Anand Kumar, Shashikumar, Jayalakshmi, Shivakumar and Thimmaiah as the family members of Hanumakka. Ex.P20 is the Statement of Accounts Extract of the Plaintiff Thimmaiah for the period 14.01.2011 to 29.10.2015.
13. Apart from the documents adduced by the Plaintiff, it is also relevant in the line of the defence put forth by the Defendant to appreciate the documents relied by the Defendant. The Defendant has examined himself as D.W.1 and reiterated the Written Statement averments and also examined one witness to the said Gift Deed ie., D.W.2 and got marked Ex.D1 to D8 documents. Ex.D1 is the Registered Sale Deed dated 03.07.2018 executed by Thimmaiah in favour of Govindaraju. The recitals of the said Gift Deed states of Gift executed in Dr. 12 O.S.No.4019/2019 between the elder brother to the younger brother. It is in respect of the Property bearing Sy.No. 200/5, having khata No.4964 of BBMP measuring East to West 40 feet, North to South 59 feet on the Western side 61 feet, totally measuring 2400 Sft. Ex.D2 is another Registered Gift Deed dated 03.07.2018 executed in favour of Govindaraju by Thimmaiah in respect of Property bearing khata No.200/1, Property No.211/A measuring East to West 40 feet, North to South 15 feet, totally measuring 600 Sft., ExD3 is the Written Statement filed by the mother of the Plaintiff and Defendant herein in O.S.No. 231/2005, which is filed by S.K. Sinha for Specific Enforcement of Contract, wherein it is the defence raised by the Defendant by name Lakshmamma in the said suit in respect of the Property that was agreed to be sold by Hanumakka and her sons in favour of S.K. Sinha, wherein a defence raised that the said deed was executed without the knowledge of the said Defendant. Ex.D4 is the Written Statement filed by the present Plaintiff and the Defendant in the very said suit in O.S.No. 231/2005, filed by S.K. Sinha as against one Lakshmamma and others. Ex.D5 is the verifying affidavit filed by both the present Plaintiff and the Defendant herein in the said suit. Ex.D6 is the judgment and orders in RFA No.186/2009 preferred by S.K. Sinha as against Lakshmamma, Dr. 13 O.S.No.4019/2019 Thimmaiah and Govindaraju, the present Plaintiff and Defendant herein. The crucial aspect that needs to be appreciated in the present orders is that, the suit in O.S.No.231/2005 came to be decreed by virtue of a compromise petition and a joint memo filed by the appellant and the Respondents before the Hon'ble High Court of Karnataka in RSA No.186/2009. Wherein the Respondents were awarded and agreed to receive a sum of Rs.2,58,00,000/- from the Appellant and in terms of the said statement, the appeal preferred by the Appellant as well as the suit preferred by the Plaintiff by name S.K. Sinha came to be decreed as on 16.02.2012. Ex.D7 is the digital copy of the release deed dated 03.07.2018 executed by Govindaraju, the Defendant herein in favour of Thimmaiah in respect of 3 items of properties namely A-schedule Property bearing Sy.No. 3/1 measuring 1.08 guntas, B-schedule Property is the Property bearing Sy.No. 43/2 measuring 10 guntas and C-schedule Property is the Property bearing Sy.No. 3/3 measuring 35 guntas, out of which 18 guntas is released by the Defendant in favour of the Plaintiff.
14. On perusal of these documents, as well as the defence forth by the Defendant in the light of the contentions put forth by Dr. 14 O.S.No.4019/2019 the Plaintiff is that, the Plaintiff has sought to declare the said Gift Deed executed in favour of the Defendant as null and void on the ground that the Plaintiff had no knowledge of the execution of the said Gift Deed and that the Defendant is said to have got created the said Gift Deed, as such the Plaintiff has sought it to be declared as null and void.
15. Per contra, the defence of the Defendant is that, the suit properties were not at all the self acquired properties of the Plaintiff as contended by him and on the alleged date of execution of said Gift Deed, 2 Gift Deeds came to be executed by the Plaintiff in favour of the Defendant on the representation of the same, Defendant had executed a release deed in favour of the Plaintiff and also a General Power of Attorney and that based upon the General Power of Attorney executed by the mother of the Plaintiff and Defendant herein ie., by name Lakshmamma, the Plaintiff herein as the kartha of the Joint Family has received the entire consideration amount which was agreed to be paid by Sri. S.K.Sinha by virtue of settlement in RFA and that out of the said amount the Plaintiff had purchased two sites and in the light of release executed by the Defendant in respect of the 3 items of the Property, the Plaintiff has executed Dr. 15 O.S.No.4019/2019 the said Gift Deed in his favour. In order to substantiate the same, the documentary evidence are placed on record.
16. This issue is upon the Plaintiff to prove that the Plaintiff had no knowledge about the said Gift Deeds and that the Defendant representing him that he would get the khata transferred in the name of the Plaintiff is said to have got the Gift Deed executed in his name. But, in order to substantiate the same, the Plaintiff has not placed any iota of material. On the other hand certain crucial documents needs to be appreciated.
17. The first crucial document that needs to be looked into and adhered to is the judgment passed by the Hon'ble High Court of Karnataka by virtue of a compromise entered into between the parties to the said case therein. In the appeal bearing RFA No.186/2009 filed by S.K. Sinha as against Lakshmamma, Thimmaiah and Govindaraju, a joint memo is filed and on the basis of said joint memo, a sum of total consideration amount of Rs.2,58,00,000/- was paid by the Appellant in favour of the Respondents. This transaction is happened, in presence of both the parties to the said proceedings, which includes S.K.Sinha, Respondent Dr. 16 O.S.No.4019/2019 Lakshmamma, Thimmaiah and the Defendant herein. This Appeal came to be decreed as on 16.02.2012 on the basis of the joint compromise Petition.
18. Ex.P1 is the Registered Sale Deed dated 09.04.2012, which is in respect of item No.1 of the Suit Schedule Property. Ex.P2 is another Registered Sale Deed dated 13.08.2012 which is in respect of item No.2. These two properties are claimed by the Plaintiff as the self acquired Properties. On the other hand, the Defendant has contended that these 2 properties were purchased by the Plaintiff out of the funds ie., sale consideration amount which was received by way of a settlement in RFA No.186/2009, which is said to have been decreed on 16.02.2012. And it also goes to show that the Plaintiff herein was the kartha of the family. As per the oral assertions of both Plaintiff and Defendant, Lakshmamma and her husband Ramaiah, had 5 children namely 2 sons and 3 daughters. And after the demise of said Ramaiah, the Plaintiff being the eldest son of the family was managing the affairs and that the said Lakshmamma is also said to have executed a General Power of Attorney in favour of the Plaintiff herein to represent Lakshmamma in RFA No.186/2009 as well as the suit preferred Dr. 17 O.S.No.4019/2019 by the daughters of Lakshmamma at Ramanagaram. Therefore, on the said basis, it also goes to show that the Plaintiff was managing the affairs of the Joint Family, including the compromise effected between S.K. Sinha and Lakshmamma and the Plaintiff and Defendant herein.
19. It is also crucial to note that, as contended by the Defendant and as probabalized by the Defendant, the Plaintiff out of the funds received in RFA No.186/2009 has purchased item No.1 and 2 vide Ex.P1 and P2. And further it is also crucial to note that on the very said date ie., as on 03.07.2018 the Defendant has also got executed the release deed in favour of the Plaintiff, which document is also placed on record by the Defendant herein vide Ex.D7, which is in respect of 3 items of Property. This fact goes to show that Plaintiff being the kartha of the Joint Family has purchased the said Property out of the funds received by way of compromise in RFA and that as per the intention between the Plaintiff and Defendant, the Defendant has got executed the release deed vide Ex.D7 as on 03.07.2018 and accordingly the Plaintiff has executed 2 Gift Deeds in respect of item No.1 and 2 in favour of the Defendant herein. Therefore, as pleaded by the Plaintiff, the Plaintiff has failed to prove that Dr. 18 O.S.No.4019/2019 without the knowledge of the Plaintiff, the Plaintiff has got executed the said Sale Deed. Further the Defendant has probabalized the defence put forth by him. And in order to establish and probabalize his case, the Defendant has also examined D.W.2 one of the witnesses to the Sale Deed executed in favour of the Plaintiff herein as well as the Gift Deed executed by the Plaintiff in favour of Defendant herein. On the basis of preponderance of probabilities, the Defendant has probabalized the defence put forth by him. On the other hand the Plaintiff has failed to prove that he had any independent income to acquire the Suit Schedule Property and as such, the said Property was self acquired Property and that the Defendant had played fraud upon him or misrepresentation and got the said Gift Deed executed in his favour.
20. Further the Plaintiff has also failed to prove the requirement of any fraud, misrepresentation or the ingredients thereof as contended by the Plaintiff. Therefore, in furtherance of the above discussion, issue No.1 stands answered in the negative.
21. Issue No.2 : This issue is with regard to the suit being bad Dr. 19 O.S.No.4019/2019 for necessary parties. The Plaintiff has filed the present suit to declare that the Gift Deed executed in favour of Defendant dated 03.07.2018 as illegally obtained by the Defendant in respect of item No.1 and 2 properties. On the other hand the defence of the Defendant was that, on the very said date, the Plaintiff in furtherance of the Defendant having executed a release deed in favour of Plaintiff in respect of 3 items of properties, the Plaintiff voluntarily executed a Gift Deed dated 03.07.2018. No doubt, the Plaintiff has incorporated in the plaint in respect of the 2 items that is being alleged to have been executed illegally by the Defendant playing fraud or misrepresentation. But, however, the Plaintiff has not placed the details of the Property which was released in his favour by the Defendant herein. In order to establish the same, the Defendant has placed Ex.D7 the release deed, wherein 3 properties are being released in favour of the present Plaintiff herein as on 03.07.2018. These properties were also essential in the light of the defence raised by the Defendant. Therefore, the Plaintiff having not incorporated the said properties, the suit of the Plaintiff is bad for non joinder of necessary properties and further it is also crucial to note that the oral assertions of Defendant, it is admitted that the sisters of the Plaintiff and Defendant had filed a suit at Ramanagaram in Dr. 20 O.S.No.4019/2019 respect of the other Joint Family properties. And so far as the suit Property is concerned, it is said to be the 'Stridhan' property of Lakshmamma, the mother of the Plaintiff and Defendant herein and in respect of this Property also a suit is pending before Ramanagaram Court, which properties and which parties ie., the sisters were also necessary parties to be impleaded in the present suit in hand. Therefore, for this reason also the suit is bad for non joinder of necessary parties to the suit. Accordingly issue No.2 is answered in the affirmative.
22. Issue No.3 : This issue is with regard to the entitlement for the relief. In furtherance of my findings to above issues and also noting that the Plaintiff has filed the suit for the relief of declaration seeking the Gift Deeds executed by him as on 03.07.2018 as null and void, the relief being an equitable relief, the Plaintiff having got the release deed executed from the Defendant in his favour in respect of 3 properties mentioned vide Ex.D7, the Plaintiff has suppressed the said aspect and has filed the present suit only in respect of the Property of which he has executed a Gift Deed.
23. The Learned Counsel for the Defendant has relied upon Dr. 21 O.S.No.4019/2019 the judgment reported in ILR 1987 KAR 2892, wherein their Lordships have held that, "Section 126 - Gift : Suspension, cancellation and revocation, conditions - no unilateral cancellation in case of fraud, coercion, misrepresentation and undue influence, but only through Court of Law".
Further it is held :
"A contract is normally rescinded or avoided, as per Sections 19 and 19A of the Contract Act. When consent to an agreement is caused by coercion, fraud, misrepresentation or undue influence, at the instance of the party whose consent is so obtained. Except on the aforesaid grounds, a gift cannot be rescinded or revoked on any other ground. This position is specifically made clear by stating in Section 126 of the Act. "Save as aforesaid, a gift cannot be revoked.". However, it may also be noticed that in the event the case falls under Section 20 of the Contract Act, the gift will be void absolute owner initio and in such a situation, the question of avoiding it does not arise. There is no recital contained in the Gift Deed as to happening of any specific event independent of the will or the donor".
24. In the present case as well the Plaintiff has not pleaded Dr. 22 O.S.No.4019/2019 the incidents of fraud, misrepresentation, coercion or undue influence. On the other hand the Plaintiff has failed to prove any grounds of coercion, fraud, misrepresentation or undue influence. On the other hand the Plaintiff has suppressed the fact of Defendant having executed a release deed in respect of 3 properties in his favour. Therefore, for the said reasons and also relying upon the said Verdict of Hon'ble High Court of Karnataka, the Plaintiff is not entitled for the relief of equity as claimed by him.
25. Further the Learned Counsel for the Defendant has also relied upon another citation reported in 2002 SCC Online KAR 56 in the case of Patel Thippeswamy Vs. Gangamma and others, wherein their Lordships at para-9 held as under :-
"The first two substantial questions of law framed by this Court relates to right of the 3rd defendant to cancel the gift deed and the findings of the Courts below are right in holding that cancellation was not in accordance with law. The Trial Court considered the right of 3rd defendant to cancel the gift deed while answering Issue No. 3. Accepting the argument of the learned Counsel for the plaintiff placing reliance upon Section 126 of the Transfer of Property Act that a registered gift deed cannot be unilaterally cancelled, placing reliance upon the decision Dr. 23 O.S.No.4019/2019 in Narayanamma vs. Papanna, it was held that cancellation of gift deed by 3rd defendant by another registered deed was not legal and valid as per the aforesaid decision, the remedy was to file a suit seeking cancellation of the gift deed. Admittedly, the 3rd defendant has not filed suit seeking the said relief. Since he has admitted execution of gift deed and the same has been acted upon, the 3rd defendant had no right to cancel the same unilaterally".
26. In the case on hand the Plaintiff has sought an unilateral relief of putting the documents to an end as null and void on the basis of suppression of facts. Hence, for the said reasons as well the Plaintiff is not entitled for the relief claimed by him. Hence, in furtherance of my findings to issue Nos.1 and 2 and also noting that the relief of declaration being a relief of equity, the Plaintiff has to come to the Court with clean hands to seek equity. On the other hand the Plaintiff has suppressed true and real facts and also has come unilaterally to declare the Gift Deed executed by him in favour of Defendant as null and void without pleading the incidents of misrepresentation. On the other hand the Plaintiff being the kartha of the Joint Family and also being the elder brother of the Defendant and also having major sons, which is reflected in the ration card furnished which is evident from the fact at Ex.P13, that the Plaintiff is legally aware and he Dr. 24 O.S.No.4019/2019 has got sufficient worldly knowledge and he is in a dominant position when compared to the younger brother, the Defendant herein. Therefore, the averments pleaded by the Plaintiff are just for the sake of filing the present suit. Therefore, for this reason also the Plaintiff is not entitled for the relief of equity such as, the relief of declaration. Accordingly, I answer that the Plaintiff is not entitled. Hence, issue No.3 is answered in the negative.
27. Issue No.4 : In furtherance of my findings on issue Nos.1 to 3, I proceed to pass the following:
ORDER The suit of the Plaintiff seeking the relief of declaration to declare the Gift Deed dated 03.07.2018 in respect of item No.1 and 2 of the Suit Schedule Property executed by the Plaintiff in favour of Defendant as null and void is hereby dismissed with cost.
Office to draw a decree accordingly.
(Dictated to the Stenographer G-I, transcribed and typed by her, corrected and then pronounced by me in the Open Court, on this the 3rd day of December, 2024) (A.M. NALINI KUMARI) XIV Addl. City Civil & Sessions Judge, Bengaluru.
Dr. 25 O.S.No.4019/2019 ANNEXURE List of witnesses examined for the Plaintiffs' side:
PW.1 : Thimmaiah List of exhibits marked for the Plaintiffs' side:
Ex.P.1 Sale Deed dated 9/4/2012
Ex.P.2 Sale Deed dated 13/8/2012
Ex.P.3 Receipt dated 23/1/2022
Ex.P.4 Cancellation of rent agreement dated
3/12/2019
Ex.P.5 Rent agreement dated 23/2/2021
Ex.P.6 Gift Deed dated 3/7/2018
Ex.P.7 Receipt dated 2/1/2017
Ex.P.8 & 9 Receipts - 2 Nos.
Ex.P.10 BWSSB Card
Ex.P.11 Receipt dated 12/1/2018
Ex.P.12 Receipt dated 13/7/2016
Ex.P.13 Receipt dated 12/7/2017
Ex.P.14 Receipt dated 8/7/2016
Ex.P.15 Rent agreement dated 18/3/2019
Ex.P.16 Rent agreement dated 1/2/2019
Ex.P.17 Rent agreement dated 19/2/2018
Ex.P.18 Acknowledgment
Ex.P.19 Ration card
Ex.P.20 Statement of Account Extract
List of witnesses examined on behalf of Defendant's side:
DW.1 : Govindaraju
DW.2 : J. Venkatesh
Dr.
26
O.S.No.4019/2019
List of exhibits marked on behalf of the Defendant's side:
Ex.D.1 Gift Deed dated 3/7/2018 Ex.D.2 Gift Deed dated 3/7/2018 Ex.D.3 Written statement in O.S.No. 231/2005 Ex.D.4 Written statement in O.S.No. 231/2005 Ex.D.5 Verifying affidavit in O.S.No. 231/2005 Ex.D.6 Judgment in RFA No. 168/2009 Ex.D.7 Release deed dated 3/7/2018 Ex.D.8 Application Under Section 65B of Indian Evidence Act (A.M. NALINI KUMARI) XIV Addl. City Civil & Sessions Judge, Bengaluru.