Karnataka High Court
Kattoji Gangaratnamma W/O Late ... vs Mogalapu Appa Rao S/O Ammanna on 17 January, 2020
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF JANUARY, 2020
PRESENT
THE HON'BLE MR.JUSTICE M.NAGAPRASANNA
REGULAR SECOND APPEAL NO.442/2006
BETWEEN:
KATTOJI GANGARATNAMMA
W/O LATE GURUMURTI
AGE: 66 YEARS
R/O: BUDIVAL CAMP,
SHINDHANUR TALUK,
RAICHUR DISTRICT-584128. ......APPELLANT
(BY SRI SHIVAKUMAR KALLOOR., ADVOCATE)
AND:
MOGALAPU APPA RAO
S/O AMMANNA
AGE: 55 YEARS
R/O: BUDIVAL CAMP
SINDHANUR TALUK
RAICHUR DISTRICT-584128. ...RESPONDENT
(BY SHIVAKUMAR MALIPATIL.,
AND SRI BASAVARAJ KAREDDY, ADVOCATES
(ABSENT))
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THIS REGULAR SECOND APPEAL IS FILED
UNDER SECTION 100 OF THE CODE OF CIVIL
PROCEDURE PRAYING TO SET-ASIDE THE
JUDGMENT AND DECREE DATED 23.11.2005 PASSED
BY THE ADDITIONAL DISTRICT JUDGE AND P.O. (FTC-
IV), RAICHUR IN R.A.NO.19/2005 AND CONFIRM THE
JUDGMENT AND DECREE DATED 28.07.2003 PASSED
BY THE PRL. CIVIL JUDGE (JR. DN), SINDHANUR IN
O.S.NO.214/1996 AND ALLOW THE REGULAR
SECOND APPEAL WITH COSTS.
THIS APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
JUDGMENT
Aggrieved by the judgment and decree of the First Appellate Court which set-aside the order passed by the Trial Court dismissing O.S.No.214/1996 and decreed the same on 23.11.2005 in R.A.No.19/2005, the defendants have filed the instant appeal.
02. The ranking of the parties will be as in the Trial Court for the sake of convenience. 3
Brief facts of the case are as follows:
03. The plaintiff has filed a suit for recovery of suit schedule property and also for cancellation of gift deed dated 13.06.1996 in O.S.No.214/1996 before the Prl. Civil Judge (Jr. Dn) Sindhanur.
04. It is the case of the plaintiff that he is the owner and in possession of land in Sy.No.73/A measuring 39 guntas situated at Somlapur village, out of the said land a residential plot in the non- agricultural land is situated at Budihal Camp within the limits of Somlapur village Tq: Sindhanur, out of this 41' East-West, towards North and South and North-South 52' towards East, 36' towards West, was gifted to the defendant. The gift deed was registered on 13.06.1996. The reasons in the Gift Deed explained by the plaintiff that about 04 years back the husband of defendant had expired. After the death of her husband, the defendant continued to reside in the suit 4 property, on several occasions the plaintiff had requested the defendant to vacate the premises. According to the plaintiff, the defendant went on postponing the date to vacate the premises same pretext every time, against which the plaintiff had issued a legal notice to the defendant. It is alleged that defendant had approached the D.S.S. (Dalit Sangarsha Samithi). The defendant also filed a false complaint before the police to get the property vested against the plaintiff through her son. On the basis of such illegal support, the defendant harassed the plaintiff. It is the case of the plaintiff that he was forced to enter into compromise and to execute the Registered Deed in favour of the defendant on 13.06.1996. The defendant contends that it was a sale deed and not a gift deed of the suit schedule property, which was executed by the plaintiff in favour of the defendant. 5
05. The averments with regard to coercion and giving life threat to the plaintiff were rebutted by the defendant before the Trial Court.
06. The trial Court put the parties on trial on the following Issues.
01. Whether plaintiff proves that defendant's husband was residing in the suit property with leave and permission of plaintiff?
02. Whether plaintiff proves that defendant got executed the gift deed on 12.06.1996 in respect of the suit properties by coercion as contended in Para No.7 of the plaint?
03. Whether defendant proves that she has purchased the suit properties from plaintiff as contended in Para No.5 of W.S.?
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04. Whether defendant proves that, she has perfected title to the suit properties by adverse possession?
05. Whether defendant proves that the suit of plaintiff is not maintainable?
06. Whether plaintiff proves that the gift deed document No.803:96-97 dated 12.06.1996 is illegal, ineffective, null and void and liable to be cancelled?
07. Whether plaintiff is entitled for declaration and possession as sought for?
08. What order or decree?
07. The Trial Court after considering the evidence and material on record came to the conclusion that there was absolutely no coercion or threat, further on perusal of the document viz., the Deed, which was allegedly executed by plaintiff, which according to him was a sale Deed executed under threat and coercion, was disbelieved and the suit came 7 to be dismissed. Against the dismissal of the suit, the plaintiff has filed an appeal before the First Appellate Court in R.A.No.19/2005 before the Additional District Judge and P.O. (FTC-IV) at Raichur. Apart from consideration of issues framed by the Trial Court, the First Appellate Court also framed the following points for consideration:-
01. Whether the plaintiff proves that the defendant obtained the gift deed dated 13.06.1996 from him by coercion and undue influence as alleged in the plaint?
02. Whether the gift deed dated 13.06.1996 is a valid document in the eye of law?
03. Whether the plaintiff is entitled to the possession of suit property?
04. Whether the plaintiff is entitled to the decree prayed for?
05. Whether the judgment and decree of the trial court call for interference of this Court?
06. What order?8
08. The First Appellate Court reversed the findings of the Trial Court and decreed the suit on the ground that it was gift deed and not a sale deed. It was also held while setting aside the judgment and decree of the Trial Court, that the gift deed dated 13.06.1996 is illegal, ineffective, null and void and same is cancelled.
09. Challenging the said judgment and decree passed by the First Appellate Court the defendant has preferred the instant appeal.
10. I have heard Sri. Shivakumar Kalloor, the learned counsel for the appellant.
11. Learned counsel for the plaintiff has continuously remained absent before this court and even today. This Court was left with no choice to hear the appellant.
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12. On the basis of the pleadings, while admitting the appeal, the following substantial question of law was formulated by this Court:-
"Whether the Lower Appellate Court was justified in reversing the judgment and decree of the Trial Court dismissing the suit with the finding that the gift deed under which the defendant was claiming the property was obtained by coercion, in the absence of any evidence in that regard."
13. I have given my anxious consideration to the pleadings and order passed by both the Trial Court and the First Appellate Court. Certain facts that are not in dispute are that the plaintiff used the suit property for his residential purpose and for storing agricultural implements and also for tethering the cattle. The plaintiff had allowed the defendant's husband for his residential purpose with a condition that he would vacate the same after alternative 10 accommodation. The husband of the defendant was carpenter by avocation.
14. On 13.06.1996 the plaintiff has executed the Registered Deed, all that has to be considered now is "Whether it was Sale Deed or Gift Deed that was executed on 13.06.1996, which was registered on the same day?".
15. The plaintiff has filed a suit for recovery of possession of the suit schedule property and also for cancellation of gift deed dated 13.06.1996. The cancellation of gift deed was sought on the ground that it was a product of coercion and undue influence. If it was product of coercion or undue influence, the plaintiff had to immediately retaliate once execution was done by complaining to the police or registering any protest with regard to the matter immediately. The Gift Deed was executed in favour of the defendant on 13.06.1996, the suit is filed on 26.10.1996 clearly 11 after four months after the execution of the gift deed. These circumstances would indicate that it is on after thought by the plaintiff that the gift deed was executed by alleging coercion and undue influence. The plaint averments would indicate that in the grab of entering into a sale by threat and coercion the plaintiff was forced into execution of the gift deed. This also would not by worthy of belief, for the reason that there is absolutely no consideration between the parties to consider it to be a sale deed. Thus, unequivocally it was gift deed.
16. I have perused the Deed in question, which is produced as Ex.D.1. The title of the Deed is insignificant. The transaction does not happen on the title of the deed, but on the recitals in the document, on a perusal of the recitals in the document it would unmistakably indicate that it is a gift deed and not a sale deed. It clearly reads that it is a "Danapatra". 12 There is absolutely no evidence for coercion and undue influence. Thus, the Trial Court was completely justified in dismissing the suit on the ground that the deed that was executed on 13.06.1996 was not due to coercion or undue influence based on the evidence and material on record.
17. The First Appellate Court without there being any evidence has come to the conclusion that the execution of gift deed was by coercion and has declared it to be void, answering the point raised for its consideration, the First Appellate Court has observed thus:-
"Both the plaintiff and defendant have not examined the ancestors of the document Ex.D.1. The evidence of PWs.2 to 5 and DWs.2 and 3 is of no consequence to prove the coercion by the plaintiff or to prove that the gift deed was out of free will of the donor by the defendant, examination of attesting 13 witnesses is more important than the independent witnesses. Therefore, the evidence of PWs.2 to 5 and Dws.2 and 3 is of no consequence and their evidence will not in any way come to the support of either plaintiff or defendant.
It may also be noted that there is no counter claim by the defendant declaring that if for any reasons the court comes to the conclusion that the gift is void the same may be declared as sale deed. In the absence of such prayer by way of counter claim the court cannot declare that the defendant is a purchaser of the suit property and gift deed so executed by the plaintiff has to be construed or treated as sale deed. So, the trial Court was not right in holding that the defendant is the purchaser of the suit property against the contents of the 14 document Ex.D.1. The court cannot even treat the gift deed Ex.D.1 as sale deed unless there is counter claim. As observed above the gift deed cannot be declared as sale deed. I therefore, do not agree with the reasoning of the trial Court on this point".
18. In my view the findings of the First Appellate Court is erroneous and it is not on the basis of evidence, as the First Appellate Court concluded that both the plaintiff and defendant have not examined the attestor of document Ex.D.1. In that light, the evidence of PWs.2 to 5 and DWs.2 and 3 has no consequence to prove the sale deed or to prove the gift deed, was a deed out of free will of the Donor viz., plaintiff. Therefore, it was concluded that the finding of the Trial Court was incorrect and order passed to that effect and set aside the dismissal of the suit and decreed the suit in favour of the plaintiff declaring that gift deed, was illegal.
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19. Theory of the sale deed propounded by the plaintiff before the Trial Court is also unacceptable. There was no consideration shown in the Deed for it to be a sale deed. The deed in question is without shadow of a doubt, a gift deed and there is no evidence placed before the Trial Court to conclude that it is a product of coercion or undue influence, but it was clearly at the free well from the Donor, the plaintiff. Thus, without there being any evidence, the First Appellate Court set aside the dismissal of the suit of the plaintiff and decreed the suit declaring that gift deed to be illegal.
20. For the aforementioned reasons, I proceed to pass the following:
ORDER
1. This second appeal is allowed with costs throughout.16
2. The judgment and decree dated 23.11.2005 on the file of the Additional District Judge and P.O. (FTC-IV) at Raichur, in RA.No.19/2005 is set-aside.
3. R.A.No.19/2005 is dismissed.
4. The judgment and decree dated 28.07.2003 passed in O.S.No.214/1996 by the Court of Prl. Civil Judge (Jr. Dn) Sindhanur, is restored.
Sd/-
JUDGE KJJ