Bangalore District Court
Sri. G. Akhilesh vs Dr. T. Jayalakshmi D/O Late T.V on 27 March, 2018
IN THE COURT OF THE XXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH-38), BANGALORE CITY.
PRESENT
SRI. VENKATARAMAN BHAT, B.Sc.,., LL.B. (Spl.)
XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38)
BANGALORE
DATED: THIS THE 27th DAY OF MARCH 2018
OS.NO.4592 OF 2013
PLAINTIFF/S SRI. G. AKHILESH
S/O SMT. T. JAYALAKSHMI
AGED ABOUT 18 YEARS,
RESIDING AT No. 824,
EWS 15TH 'B' CROSS,
12TH B-MAIN, SECTOR -B,
II PHASE MOTHER DIARY CROSS,
YELAHANKA NEW TOWN
BANGALORE - 64,
AND PRESENTLY RESIDING AT
No. 633, WEST OF CHORD ROAD,
II STAGE, BASAVESHWARANAGAR,
BANGALORE.
(By Sri. R. Nataraj, Adv.)
Versus
DEFENDANT/S 1. DR. T. JAYALAKSHMI D/O LATE T.V.
THIMMEGOWDA, AGED ABOUT 68
YEARS, RESIDING AT No. 824,
EWS 15TH 'B' CROSS,
12TH B-MAIN, SECTOR -B,
II PHASE MOTHER DIARY CROSS,
YELAHANKA NEW TOWN, BANGALORE -
64.
2. SMT. B.K. GAYATRI MOHAN W/O SRI.
CHANDRAMOHAN,
AGED ABOUT 34 YEARS, RESIDING AT
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O.S.No. 4592/ 2013
No. 73 1ST 'D' MAIN ROAD, RPC LAYOUT,
VIJAYANAGAR 2ND STAGE, BANGALORE -
560 040.
3. SMT. MANJULA VIJAYAKUMAR
W/O B.V. VIJAYAKUMAR, AGED ABOUT
39 YEARS, RESIDING AT No. 142, 9TH
CROSS, 4TH MAIN, CHAMARAJPET,
BANGALORE - 560 018.
(Defendant No.1 by Sri. NCP, Adv.
Defendants No.2 and 3 by Sri. JMS, Adv.)
Date of Institution of the suit 26.06.2013
Nature of suit Suit for declaration, cancellation
of Gift Deed and permanent
injunction.
Date of commencement of 26.02.2014
recording of evidence.
Date on which judgment was 27.03.2018
pronounced.
Total Duration. Years Months Days
04 11 01
XXXVII ACCJ, BANGALORE
3
O.S.No. 4592/ 2013
JUDGMENT
Plaintiff filed this suit against the Defendants with the following reliefs.
(a) It may be declared that the sale deed executed by Defendant No.1 in favour of Defendants No.2 and 3 on 05.04.2013 is null and void and not binding on the plaintiff.
(b) It may be declared as the plaintiff is the absolute owner of the suit schedule property.
(c) It may be declared that cancellation of Gift Deed dated 13.04.2012 executed by Defendant No.1 as null and void.
(d) Defendants, their agents may be restrained by permanent injunction from interfering with the possession over the suit schedule property.
2. The brief facts of the case are as under.
Plaintiff was born on 14.04.1995. Plaintiff attained majority on 14.04.2013. The mother of plaintiff and Defendant No.1 are sisters. Defendant No1 is a doctor by profession. Defendant No.1 unmarried till today. It is submitted that the brothers of the Defendant No.1 have outcasted the Defendant No.1 since she had illegal relationship with one person by name Sri. Somanna. In other words, the Defendant No.1 is a spinster / virgin. Mother of the plaintiff died on 21.09.2002 leaving behind plaintiff and two daughters. Thereafter the Defendant No.1 showed interest 4 O.S.No. 4592/ 2013 in the care and custody of plaintiff. At last, the Defendant No.1 expressed her willingness to take adoption of the plaintiff. Natural father of the plaintiff after consulting the family members gave the consent to give plaintiff in adoption. Accordingly, the Defendant No.1 took the plaintiff as adopted son under a registered adoption deed dated 13.07.2005. Thereafter the plaintiff was in the care and custody of the Defendant No.1. Plaintiff had shown love and affection towards Defendant No.1. Under these circumstances, the Defendant No.1 executed Will dated 22.08.2005 and thereby bequeathed the suit schedule property in favour of plaintiff.
The suit schedule property is shown as under.
SCHEDULE All that part and parcel of a residential building of the property bearing No. 633 lying within 14th Ward of BBMP and identified as PID No. 14-74-633 and situate at West of chord Road, 2nd Stage, Basaveshwara Nagar, Bangalore measuring East to West 60 feet and North to South 40 feet bounded on the East by : 3rd Main road.
West by : Site No. 626North by : Property No. 632 South by : Property belonging to Marlingaiah Later Defendant No1 had also executed unconditional Gift Deed dated 12.09.2011 in favour of Defendant No1. It 5 O.S.No. 4592/ 2013 was registered in the office of Sub-Registrar, Rajajinagar. The portion of the house constructed in the schedule property were let out in favour of different tenants. Lease agreement came to be executed in the name of plaintiff. Defendant No.1 was collecting the rent from the tenants on behalf of the plaintiff.
That being the state of affairs, natural father of the plaintiff expressed his intention for the second marriage. It appears that the defendant No.1 opposed the said proposal. That being the position, without any intimation to the plaintiff the Defendant No.1 sold suit schedule property in favour of Defendants No.2 and 3. On 05.04.2013. Apart from this plaintiff came to be know that the Defendant No.1 unilaterally cancelled Gift Deed and also Will on 13.12.2012 and 13.04.2012 through registered instruments.
It is submitted that without any valid reason Defendant No.1 cancelled Gift Deed which was duly executed. The plaintiff is in possession and enjoyment of the suit schedule property Defendant No.2 and 3 without any right started to assert right over the suit schedule property recently. Under these circumstances, the plaintiff was constrained to file this suit.
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O.S.No. 4592/ 2013
3. On being summoned, Defendants No.1 to 3 put appearance through their Advocates. Of course, Defendant No.1 and defendants No.2 and 3 filed written statement, separately. But their written statement are on the similar line. Written statement of the Defendant No.1 reads as under.
Suit is not maintainable. According to the Defendant No.1 she is absolute owner of the suit schedule property by virtue of the registered sale deed dated 07.11.2001 executed by BDA in her favour. Thereafter the Defendant No.1 adopted the plaintiff as adopted son under the registered adoption deed dated 13.07.2005. It is also admitted that the Defendant No.1 executed registered Gift Deed dated 17.11.2009 in favour of plaintiff. But according to the Defendant No.1 since the Gift Deed was not in accordance with law she cancelled the same. It is submitted that the Defendant No.1 herself accepted the Gift Deed on behalf of the Donee. This Defendant No.1 cancelled the Gift Deed dated 17.11.2009. It is further submitted that Defendant No.1 sold this suit schedule property in favour of Defendants No.2 and 3 after cancellation of Gift Deed. Now Defendants No.2 and 3 are in actual possession and enjoyment of the suit schedule property. Katha has been changed into the names of 7 O.S.No. 4592/ 2013 Defendants No.2 and 3. It is further pleaded that the court fees paid by the plaintiff is insufficient and suit is liable to bedismissed.
Defendants No.2 and 3 filed separate written statement with same defence as set up by the Defendant No.1. Apart form this it is submitted that defendant No.2 and 3 are bonafide purchasers for value of the suit schedule property without notice of execution of Gift Deed in favour of plaintiff. On these grounds the defendants pray for the dismissal of the suit with cost.
4. Out of the above pleadings, the following issues were framed.
(1) Does the plaintiff proves that he is the absolute owner of the plaint schedule property?
(2) Does the plaintiff proves that the sale deed executed by Defendant No.1 in favour of Defendant No.2 and 3 on 05.04.2013 are not binding on his right, title and interest over the plaint schedule property for the reasons stated in the plaint?
(3) Does the plaintiff proves that he was in possession of the plaint schedule property as on the date of filing of the suit?
(4) Does the plaintiff proves that Defendants are interfering in his possession over the plaint schedule property?
8
O.S.No. 4592/ 2013 (5) Does the plaintiff proves that he is entitled for the relief prayed in the plaint?
(6) What order or decree?
ADDITIONAL ISSUES (1) Whether the plaintiff proves that cancellation of gift deed dated 13.04.2012 executed by Defendant No.1 as null and void?
(2) Whether Defendant No.2 and 3 proves that the suit is barred by limitation?
(3) Whether court fee paid by the plaintiff is sufficient?
5. Trial was held. Plaintiff was examined as PW 1 and Ex.P1 to P11 got marked . Defendant No.1 was examined as DW 1 and Ex.D1 to D25 got marked. Husband of the Defendant No.2 was examined as DW 2 by virtue of the General Power of Attorney executed by Defendant No.2. Likewise the husband of the Defendant No.3 was examined as DW 3 by virtue of the General Power of Attorney executed by Defendant No.3.
6. Both advocates submitted their notes of arguments.
7. My findings on the above issues are as under.
Issue No.1 : In affirmative
Issue No.2 : In affirmative
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O.S.No. 4592/ 2013
Issue No.3 : In affirmative
Issue No.4 : In affirmative
Issue No.5 : In affirmative.
Addl. Issue No.1 : In affirmative
Addl. Issue No.2 : In negative.
Addl. Issue No.3 : In affirmative.
Issue No.6 : As per final order, for the
following.
REASONS
8. ISSUE No.1 to 5 & ADDL. ISSUE No.1: For the sake
of convenience and also to avoid repetition of facts, I would like to discuss these issues together. Apart from this, the subject matter of these issues are inter-linked with each other in such a way that it is just and proper to hold common discussion. No party will be put to any prejudice by doing so.
9. There are some admitted facts in this case. It is not in dispute that the plaintiff was born on 14.04.1995. It is further proved by Ex.P1 is the birth extract of plaintiff. Likewise, it is not in dispute that the mother of the plaintiff and Defendant No.1 are sisters. Mother of the plaintiff died on 21.09.2002. In other words, the plaintiff is close relative of the Defendant No.1. It is not in dispute that Defendant No.1 took the plaintiff as adopted son under a registered adoption deed dated 13.07.2005. Ex.P3 is the original adoption deed 10 O.S.No. 4592/ 2013 entered into between biological father of the plaintiff and the Defendant No.1. It can be noticed that after the adoption of plaintiff and Defendant No.1 became the adopted mother of the plaintiff No1. This Defendant No.1 is unmarried. She took the plaintiff as her adopted son. It is not in dispute that the suit schedule property is allotted to the Defendant No.1 under the registered sale deed. Having taken the plaintiff as adopted son Defendant No.1 had executed a Will dated 22.08.2005 and bequeathed the schedule property in favour of the plaintiff. Ex.P4 is the original Will dated 22.08.2005. Apart from this execution of the Will the Defendant No.1 out of love and affection executed Gift Deed in favour of plaintiff with respect to the suit schedule property on 17.09.2011. It was registered in the Sub-Registrar office of Rajajinagar. Ex.P5 is the original gift deed, executed by Defendant No.1 in favour of plaintiff. However, Defendant No.1 cancelled the said Gift Deed under the registered cancellation of the Gift Deed dated 13.04.2012. Apart form this the Defendant No.1 sold the suit schedule property in favour of Defendants No.2 and 3 under the registered sale deed dated 05.04.2013. In the case on hand, the plaintiff has challenged the execution of the said sale deed dated 05.04.2013 executed by the Defendant No.1 in favour 11 O.S.No. 4592/ 2013 of Defendants No.2 and 3. Plaintiff had also challenged the cancellation of Gift Deed dated 13.04.2012 by Defendant No.1. By challenging these two registered instruments, the plaintiff submitted that he is the absolute owner of the suit schedule property. It can be noticed that the plaintiff attained majority only on 14.04.2013. In other words, the alleged sale deed has been executed by Defendant No.1 in favour of Defendants No.2 and 3 during the minority period of the plaintiff. After attaining the majority, plaintiff has challenged the sale deed as well as cancellation of Gift Deed. Keeping in mind these essential facts, which was constrained to file this suit, I would like to appreciate the oral and documentary evidence placed before this court by respective parties.
10. Plaintiff was examined as PW 1. Defendant No.1 was examined as DW 1. General Power of Attorney holder of the Defendant No.2 / her husband was examined as DW 2. whereas the husband of the Defendant No.3 was examined as DW3. since the dispute is pertaining to the question of law, factual aspects elicited during the course of evidence is not much helpful to decide the dispute on merits. 12
O.S.No. 4592/ 2013
11. It is pertinent to note that no where the defendant No.1 disputed that the plaintiff is not adopted son. On the other hand, Defendant No.1 duly admitted the execution of the registered adoption deed dated 13.07.2005. Ex.P3 is the original adoption deed. Onething is very clear that till today the plaintiff is the adopted son of Defendant No.1. Ex.P5 is the original Gift Deed dated 17.09.2011. Much was argued on the validity of Ex.P5. As per plea taken in the written statement by Defendant No.1, it discloses that since the said Gift Deed dated 17.09.2011 is not as per law, Defendant No.1 cancelled the said Gift Deed. More particularly in the cancellation of Gift Deed it is stated that with the consent of the plaintiff and in order to alienate the said property Defendant No.1 has cancelled the Gift Deed. During the course of arguments, the learned Advocate for plaintiff referred the following decisions.
(1) AIR 2004 SUPREME COURT 1257 (K. KAMALAM VS. BALAKRISHNAN AND OTHERS).
(2) 2002 (3) KAR.L.J. 512 (PATEL THIPPESWAMY VS.
SMT. GANGAMMA AND OTHERS).
(3) ILR 2011 KAR 120 (SRI. K. RAJU VS. BANGALORE DEVELOPMENT AUTHORITY). 13 O.S.No. 4592/ 2013 (4) (1993) 4 SUPREME COURT CASES 38 (PANNI LAL VS. RAJINDER SINGH AND ANOTHER). (5) (2002) 1 SUPREME COURT CASES 178 (MADHEGOWDA (DEAD) BY LRS. VS. ANKEGOWDA (DEAD) BY LRS. AND OTHERS). (6) 2004 (2) KCCR 705 (BASAWANAPPA (DECEASED BY LRS VS. NANA RAO @ PRAKASH AND OTHERS). (7) (2004) 8 SUPREME COURT CASES 785 (NANGALIAMMA BHAVANI AMMA VS. GOPALAKRISHNAN NAIR AND OTHERS). (8) AIR 2014 SUPREME COURT 2906 (RENIKUNTLA RAJAMMA (D) BY LRS VS. K. SARWANAMMA). (9) 2007 (13) SCC 120 (ASOKAN VS. LAKSMIKUTTY AND OTHERS).
(10) SECOND APPEAL No. 1459 OF 2005 (PAGADALA BHARATHI AND ANOTHER VS. J. RADHA KRISHNA).
(11) A.S. No. 67 OF1984 (SAKUNTALAMMA (DIED) VS.
T.G. RAJABATHAR (DIED).
(12) 1999 1 OLR 228 (SURASEN DALABEHERE VS.
RAMA NAIK).
(13) W.P. No. 18380 OF 2013 DATED 26..04.2016 (MADRAS HIGHT COURT)
12. I have gone through the legal principles laid down in these decisions. First of all, there is no dispute with regard to execution of adoption deed dated 13.07.2005. It can be noticed that the plaintiff is the adopted son of Defendant No.1. 14
O.S.No. 4592/ 2013 Whereas the Defendant No.1 is the adoptive mother of the plaintiff. As per Section 7 of Hindu Minority and Guardianship Act, 1956, the natural guardianship of adopted son who is a minor transferred , on adoption to the adoptive father and after him the adoptive mother. In the case on hand, there is no question of transfer of guardianship in favour of adopted father since Defendant No.1 is unmarried lady/ spinster she became adoptive mother of the plaintiff automatically by operation of law from the date of execution of the adoption deed. Now, I would like to see whether Ex.P5 is a valid Gift Deed or not. It is pertinent to note that at the time of execution of Gift Deed the plaintiff was aged about 17 years. Plaintiff was represented by natural guardian i.e. Defendant No.1. In other words, the Defendant No.1 is the Donor and the plaintiff is the Donee. It can be noticed that during the minority period of the plaintiff, Ex.P5 has been executed. Section 122 of Transfer of Property Act, defines Gift and as per this provisions Gift is the transfer of certain existing movable or immovable property made voluntarily and without any consideration by one person called Donor and another called Donee and accepted by or on behalf of Donee. Much was argued with regard to acceptance of the Gift Deed. 15
O.S.No. 4592/ 2013 Advocate for Defendants argued to the effect that this Defendant No.1 accepted the property on behalf of minor plaintiff. It is not legal. As it is already stated this Gift Deed was executed during the minority period of the plaintiff. There is no bar under the provisions of Transfer of Property Act to gift any property in favour of minor. But acceptance of the property must have been taken by the Donee or on behalf of him by any other person. Perused, conditions / recitals of Ex.P5. On the face of the Gift Deed, it can be noticed that it is an unconditional Gift Deed. There is recital to the effect that possession of the suit schedule property has been delivered in favour of the Donee. There is clear recital with regard to transfer of ownership in favour of the Donee. There is no transferring clause in the Gift Deed. At the end of the Gift Deed it can be noticed that the defendant No..1 as natural guardian accepted the property on behalf of the minor plaintiff / Donee. It is pertinent to note that the Defendant No.1 as the owner of the schedule property out of love and affection gifted the property in favour of plaintiff. Whereas the Defendant No.1 as a natural guardian of the plaintiff accepted the property on behalf of the minor plaintiff. In other words, acceptance of the plaintiff by the Defendant No.1 is in different 16 O.S.No. 4592/ 2013 capacity. That being the position it cannot be held that this Defendant No.1 by accepting the gift of plaintiff, a ground is made out to cancel the Gift Deed. Section 123 of Transfer of Property Act, contemplates how the transfer is effected. As per this Section purpose of making Gift of immovable property the transfer must be effected by registered instrument signed by or on behalf of Donor, and attested by atleast two witnesses. In the case on hand, the Defendant No.1 as Donor put signature on Ex.P5. It is a registered instrument. Two attesting witnesses put signature on Ex.P5. In other words, the Ex.P5 is valid Gift Deed and not suffer from any illegalities.
13. It is pertinent to note that on the date of execution of the Gift Deed the plaintiff was aged about 17 years. Plaintiff is well educated person. Acceptance of Gift Deed may be either express or implied or circumstances. It can be noticed that even after attaining majority, the plaintiff did not repudiate the Gift Deed. As per the recitals of the Gift Deed actual possession has been handed over to the Donee. There is no condition restraining the enjoyment of the schedule property. The plaintiff has produced original Gift Deed. It indicates that 17 O.S.No. 4592/ 2013 the original Gift Deed has been handed over to the Donee on the date of registration of the Gift Deed. So one thing is clear that by looking into the attending circumstances, and other recitals of the Gift Deed it goes to very clear that the gift was accepted by the Donee.
14. According to the Defendant No.1 this execution of Gift Deed was not in accordance with law and the cancelled that Gift Deed. It is not known on what ground, the Defendant No.1 says that execution of the Gift Deed is not as per law.
15. As per Section - 126 of Transfer of Property Act only in two situations gift may be suspended or revoked as under.
(i) A gift may be suspended or revoked in certain cases by agreement and in certain circumstances without any previous agreement.
(ii) Gift may be revoked on the same ground as a contract may be rescinded.
16. There is no agreement between Donor and Donee to cancel or revoke the gift deed. There is no valid other grounds to cancel the Gift Deed without any previous agreement. It is not the contention of the Defendant No.1 that the Gift Deed 18 O.S.No. 4592/ 2013 has been executed on account of fraud, undue influence, misrepresentation as stated under Section 19 of Contract Act. On the other hand, Defendant No.1 herself admitted the execution of the Gift deed dated 17.9.2011. There is no pleading to the effect that execution of Gift Deed is due to fraud, misrepresentation, undue influence etc. That being the condition in my view the two situations as stated under Section 126 of Transfer of Property Act are not attracted. As per Section 126 of Transfer of Property Act the aforesaid Gift Deed cannot be revoked. In other words, it contemplates that except under two situations, as referred above, gift cannot be revoked or cancelled. In other words, moment the Gift Deed got registered and Donee accepted the gifted property, ownership has been transferred in favour of plaintiff. In other words, as soon as execution of the Gift Deed right, title and interest have been vested with the plaintiff. Once the right is vested with the plaintiff same cannot be divested without tany order of the court. On this aspect Hon'ble High Court of Karnataka, Bangalore in 2002 (3) KAR.L.J. 512 (PATEL THIPPESWAMY VS. SMT. GANGAMMA AND OTHERS) held as under.
19
O.S.No. 4592/ 2013 "Held: A registered gift deed cannot be unilaterally cancelled, cancellation of gift deed by another registerd deed was not legal and valid, 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. The concurrent findings recorded by the Courts below give no room for interference."
17. As per law laid down by the Hon'ble High Court of Karnataka, Bangalore, proper course of action by Defendant No.1 is to file a suit for cancellation of Gift Deed, but not condition of Gift Deed. On this ground also, the cancellation of the Gift Deed is an illegal act committed by the Defendant No.1.
18. In the case on hand, all essential conditions of the gift were fulfilled. In other words, there is valid execution of Gift Deed. Once a valid Gift Deed has been executed, Defendant No.1 cannot unilaterally cancel the Gift Deed. There is no material or evidence to show that plaintiff too consented for the cancellation of the Gift Deed. In the absence of any agreement between the parties, unilaterally cancellation of Gift Deed by Defendant No.1 is against well established principle of law.
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O.S.No. 4592/ 2013
19. Learned Advocate for Defendant No.1 much stressed on the condition laid down in Ex.P5. Ex.P5 is the original Gift Deed dated 17.09.2011. According to the advocate for Defendant No.1 there is a condition to repay the loan amount taken by the Defendant No.1 by father of the plaintiff. However, the father of the plaintiff, did not repay the said amount and as such the Defendant No.1 cancelled the Gift Deed. On the perusal of Ex.P5 it discloses that there is condition to the effect that father of the plaintiff should repay the loan amount of Rs. 9,40,000/- in favour of Canara Bank Mahalakshmipura Extension Branch. It reads as under.
¸ÀzÀjà ¸ÀéwÛ£À°è ªÀÄ£É PÀlÖ®Ä F »AzÉ ªÉÄB PÉ£ÀgÁ ¨ÁåAPï ªÀĺÁ®Qëäà §qÁªÀtÉ ±ÁSÉ ¨ÉAUÀ¼ÀÆgÀÄ F ¨ÁåAQ£À°è ¸Á® ¥ÀqÉzÀÄPÉÄAÁrzÀÄÞ ¸ÀzÀjà ¸Á®ªÀÅ gÀÆ. 9,40,000-00 ¨ÁQ EzÀÄÝ EzÀgÀ ¸Á®ªÀ£ÀÄß ªÀiÁB f CT¯Éñï gÀªÀgÀ vÀAzÉAiÀĪÀgÁzÀ ²æà UÉÆÃ¥Á¯ï gÀªÀgÉà ¥ÁªÀw ªÀiÁqÀvÀPÀÌzÀÄÝ.
20. Now, the question for consideration whether this condition is binding on the plaintiff. Liability is fixed on the father of the plaintiff. Section 127 of Transfer of Property Act deals with onerous of gift. It can be noticed that at the time of execution of Gift Deed, the plaintiff was minor. In other words, he was incompetent to enter into contract as per 21 O.S.No. 4592/ 2013 Section 11 of Contract Act, but provisions of Transfer of Property Act permits a minor to accept the gift. At this stage, it is more proper to extract portion of commentary in a book written by Dr. Sir Hari Singh Gour (12th Edn.). At page 2374, under Head Note-7 of Section 127 of Transfer of Property Act, 1882 reads as under.
"7. Acceptance of an onerous gift cannot bind the minor. - Section 127 of the Transfer of Property Act, throws light on the question of validity of transfer of property by gift to a minor. It recognizes minor's capacity to accept the gift without intervention of a guardian. If it is possible, or through him.
The last part of Sec. 127 clearly indicates that a minor Donee, who can be said to be in law incompetent to contract under Sec. 11 of the Contract Act is, however, competent to accept a non onerous gift. Acceptance of an onerous gift, however, cannot bind the minor. If he accepts the gift during his minority of a property burdened with obligation and on attaining majority does not repudiate but retains it, he would be bound by the obligation attached to it."
21. Now, one thing is very clear that an acceptance of Onerous gift does not bind on the minor. In the case on hand, after attaining majority the plaintiff did not repudiate the gift. There are circumstances, to show that practically the plaintiff has accepted the gift. Of course, gift was accepted on behalf of the plaintiff by Defendant No.1 as natural guardian. 22
O.S.No. 4592/ 2013 Looking from any angle, it can be stated that no ground is made out to accept the cancellation of gift deed executed by Defendant No.1 on 13.04.2012.
22. It is pertinent to note that sale deed was executed on 05.04.2013 in favour of defendants No.2 and 3 by Defendant No.1. On that day, the plaintiff was still minor. He attained majority only on 14.04.2013. Admittedly, suit schedule property is the self acquired property of the Defendant No.1 which was allotted by BDA. By way of transfer Defendant No.1 already gifted this property to the plaintiff under the Gift Deed dated 17.09.2011. A specific finding has been given to the effect that cancellation of the Gift Deed by Defendant No.1 dated 17.09.2011 is illegal and not binding on the plaintiff. In other words, as on the date of execution of sale deed title was vested with the plaintiff. It is pertinent to note that the suit schedule property was property of minor. No prior permission of the court was taken by the guardian / Defendant No.1 to sell the said property. On this ground also the said sale deed is void at the instance of plaintiff attaining majority can challenge the validity of the alienation of the said sale deed. So looking from any angle, the entire sale transaction of 23 O.S.No. 4592/ 2013 Defendant No.1 as well as cancellation of Gift Deed is against the provisions of law and it is void.
23. As per Ex.P5 possession has been handed over to the plaintiff. Defendant No.1 has been held this property on behalf of minor. Plaintiff became major on 14.04.2013. It is not known when the possession of the plaintiff has been dispossessed. Onething is very clear that plaintiff is in actual possession of suit schedule property. There is no merit in the saying that by virtue of the sale deed dated 05.04.2013, Defendant No.1 has handed over the possession of the suit schedule property in favour of Defendant No.2 and 3. Of course, Defendants No.2 and 3 have produced Katha extract and Katha certificate. This documents are not documents of title unless and until dispossession of the plaintiff is proved, it cannot be held that Defendants No.2 and 3 are in possession of the schedule property. When without any right Defendants are asserting their rights over the suit schedule property, it amounts to interference by their act.
24. As far as Will is concerned, it can be noticed that the Defendant No.1 has bequeathed the suit schedule property 24 O.S.No. 4592/ 2013 under the registered sale deed dated 22.08.2005 in favour of plaintiff. However, it was cancelled by Defendant No.1 on 13.12.2012. Will takes effect from the date of death of testator. Since Defendant No.1 is still alive the execution of Will with respect to suit schedule property will not take effect. That being the position it is not necessary to give finding on this aspect.
25. Taking into consideration the cumulative evidence produced by the parties, as well as evidence, a ground is made out to set aside the sale deed dated 05.04.2013. There is threat to the possession of the plaintiff over the suit schedule property. Accordingly, I answer issues No.1 to 5 and additional issue No.1 in affirmative.
26. ADDITIONAL ISSUE No.2: During the pendency of the suit, plaintiff got amended the relief and sought to the effect that cancellation of the Gift Deed dated 13.04.2012 be declared as null and void and not binding on them. Apart from this he seeks to declare to the effect that he is the absolute owner of the suit schedule property. Already plaintiff seeks declaration of sale deed dated 05.04.2013 as null and 25 O.S.No. 4592/ 2013 void. It is pertinent to note that the plaintiff attained maturity on 14.04.2013. Defendants No.2 and 3 in the additional written statement pleaded that suit is barred by limitation. Article 60 of the Limitation Act governs a suit a word of Transfer of Property by the guardian. As per this Article, limitation is 3 years from the date of attaining maturity. As it is already stated plaintiff attained maturity on 14.04.2013. This suit was filed on 26.06.2013. Sale deed was executed on 05.04.2013. Cancellation of Gift Deed was executed on 13.04.2012. Onething is very clear that suit is filed within 3 years from the date of attaining majority of the plaintiff. Accordingly, I answer additional issue No.2 in negative.
27. ISSUE No.5: In view of the discussion held supra, alleged sale deed dated 05.04.2013 is voidable at the instance of plaintiff. A ground is made out to declare that the alleged sale deed as null and void and not binding on the plaintiff. Plaintiff is not a party to the said sale deed. Hence, the question of cancellation of sale deed does not arise. Whereas the plaintiff himself seeks cancellation of Gift Deed dated 13.04.2012. A finding has been already given to the effect that Defendant No.1 has no right to cancel the Gift Deed dated 26 O.S.No. 4592/ 2013 17.09.2011. There is evidence to show that the plaintiff is in possession of the schedule property. Any assertion of right of the Defendants over the suit schedule property amounts to interference with the possession of the plaintiff over the suit schedule property. Under these circumstances, the plaintiff is entitled for relief as prayed. Hence, I answer issue No.5 in affirmative.
28. ADDITIONAL ISSUE No.3: Defendant No.2 and 3 have taken up a contention in the additional written statement to the effect that the court fees paid by the plaintiff is insufficient. Perused valuation slip filed by the plaintiff. It can be noticed that as on the date of the filing of suit, the plaintiff had only sought declaration of the sale deed dated 05.04.2013 as null and void and not binding on him. Consequential relief of permanent injunction is also sought. Plaintiff has valued the declaratory relief under Section 24 (d) of Karnataka Court Fees & Suits Valuation Act, 1958 and paid a sum of Rs. 25/-. As far as permanent injunction is concerned, the court fees is paid under Section 26 (c) of Karnataka Court Fees & Suits Valuation Act, 1958. During the pendency of the suit, the plaintiff got amended the relief 27 O.S.No. 4592/ 2013 column and sought declaration to the effect that he is the absolute owner of the suit schedule property. Apart from this, the plaintiff sought cancellation of Gift Deed by Defendant No.1 on 13.04.2012 as null and void and not binding on the plaintiff. Of course, the plaintiff sought declaratory relief and also he is required to pay court fees under Section 24 (b) of Karnataka Court Fees & Suits Valuation Act, 1958. Suit schedule property is not an agricultural land. On the other hand, it is house site and constructed building thereon. In other words, the suit schedule property is non-agricultural land. Plaintiff is required to pay court fees on the market value of the suit schedule property. It is pertinent to note that the plaintiff advocate had filed a memo dated 09.02.2016 and paid a sum of Rs. 2,16,000/- as additional court fees, for the relief of declaratory relief. As far as cancellation of Gift Deed is concerned, the plaintiff has paid a court fees under Section 24 (d) of Karnataka Court Fees & Suits Valuation Act, 1958. totally the plaintiff has paid additional court fees of Rs.2,16,000/-along with valuation slip. It can be noticed that total consideration of suit schedule property has been mentioned in the sale deed as Rs.1,13,85,000/- on 15.04.2013. The suit was filed on 26.06.2013. IN other 28 O.S.No. 4592/ 2013 words, there is no possibility of hike in the price of the suit schedule property. It means the actual market value of the suit schedule property is Rs.1,13,85,000/- as on the date of filing of the suit. So looking from any angle it discloses that whatever the court fee paid by the plaintiff is sufficient. Accordingly, I answer issue No.5 in affirmative.
29. ISSUE No.6: Taking into consideration of the relevant provision of law governed under Transfer of Proper Act, and other law as and also principles of law laid down in various decisions as referred by the advocate for the plaintiff, I am of the view that the suit is going to be decreed. The plaintiff is entitled for the relief as prayed. In the result, I proceed to pass the following.
ORDER (1) Suit is decreed with cost.
(2) It is declared that the plaintiff is absolute owner of the suit schedule property.
(3) It is declared that the sale deed dated 05.04.2013 executed by the Defendant No.1 in favour of Defendants No.2 and 3 registered in the office of Sub-Registrar, Vijayanagar as Document No. VJN- 29
O.S.No. 4592/ 2013 1-00070-2013-14 of Book No. 1 and stored in CD No. VJND 89 is null and void and not binding on the plaintiff.
(4) It is declared that cancellation of Gift Deed by Defendant No.1 dated 13.04.2012 registered in the office of Sub-Registrar, Vijayanagar as Document No. VJN-1-00/49-2012-13 of Book No. 1 and stored in CD No. VJND 189 is null and void and liable to be cancelled.
(5) Defendants, their agents are hereby restrained by grant of permanent injunction from interfering with the possession of the plaintiff over the suit schedule property.
(6) Office is directed to send certified copy of decree to the concerned Sub-Registrar office so as to make an entry in the Book maintained by them at the cost of the plaintiff.
(7) Draw decree, accordingly.
(Dictated to the Judgment Writer Online, corrected and then pronounced by me in open court, this the 27th DAY OF MARCH 2018) (VENKATARAMAN BHAT) XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38) BANGALORE 30 O.S.No. 4592/ 2013 ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
PW1 Sri. G. Akilesh Documents marked on behalf of the plaintiff/s:
Ex.P1 Birth Certificate
Ex.P2 Death Certificate of T. Susheela
Ex.P3 Registered Deed of adoption.
Ex.P4 Original registered Will deed
Ex.P5 Original Gift Deed dated 17.09.2011.
Ex.P6 Certified copy of sale deed dated 15.04.2013
Ex.P7 Certified copy of cancellation of Gift Deed dated
13.04.2012.
Ex.P8 Katha Certificate
Ex.P9 Katha extract dated 25.06.2013
Ex.P10&11 Two photographs.
List of witnesses examined on behalf of the Defendant/s:
DW1 Dr. T. Jayalakshmi DW2 Sri. Chandramohan DW3 Sri. Vijaya Kumar
Documents marked on behalf of the Defendant/s:
Ex.D1 Certified copy of sale deed
Ex.D2 Gift Deed
Ex.D3 Cancellation deed of Gift Deed
Ex.D4 Copy of sale deed
Ex.D5 Katha Certificate
Ex.D6 Katha extract
Ex.D7to12 Encumbrance Certificates
Ex.D13 Copy of plaint
Ex.D14 T.C. copy
Ex.D15 Original General Power of Attorney
Ex.D16&17 Katha Certificate and Extract
Ex.D18 Tax paid receipts
Ex.D19to21 Three Encumbrance Certificates
Ex.D22 Letter of Canara Bank
Ex.D23 Two Insurance policies
Ex.D24 One Certificate
Ex.D25 Original General Power of Attorney
XXXVII ADDL. CITY CIVIL JUDGE,
(CCH-38), BANGALORE.
31
O.S.No. 4592/ 2013
Judgment passed and pronounced in
the open court (vide separate
judgment). The operation portion of
the order reads thus -
ORDER
(1) Suit is decreed with cost.
(2) It is declared that the plaintiff is
absolute owner of the suit schedule
property.
(3) It is declared that the sale deed dated 05.04.2013 executed by the Defendant No.1 in favour of Defendants No.2 and 3 registered in the office of Sub-
Registrar, Vijayanagar as Document 32 O.S.No. 4592/ 2013 No. VJN-1-00070-2013-14 of Book No. 1 and stored in CD No. VJND 89 is null and void and not binding on the plaintiff.
(4) It is declared that cancellation of Gift Deed by Defendant No.1 dated 13.04.2012 registered in the office of Sub-Registrar, Vijayanagar as Document No. VJN-1-00/49-2012-13 of Book No. 1 and stored in CD No. VJND 189 is null and void and liable to be cancelled.
(5) Defendants, their agents are hereby restrained by grant of permanent injunction from interfering with the possession of the plaintiff over the suit schedule property.
(6) Office is directed to send certified copy of decree to the concerned Sub-
Registrar office so as to make an entry in the Book maintained by them at the cost of the plaintiff.
(7) Draw decree, accordingly.
XXXVII ACCJ, (CCH-38)