Bangalore District Court
Smt.Elizabeth vs Francis Antony on 24 February, 2021
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY : (CCH.18)
Dated this 24th day of February, 2021.
Present
SRI.DINESH HEGDE, B.A.LL.B.,
XIX ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S.NO.3541/2016
PLAINTIFF : Smt.Elizabeth,
w/o late Augusin,
aged about 65 years,
r/at No.4, 8th Main,
Vinayaka Layout,
Chinnappanahalli,
Doddanekundi Extension,
Marathalli, K.R.Puram Hobli,
Bangalore South Taluk.
( By Sri.V.Chandrappa, Advocate)
-VS-
DEFENDANTS : 1.Francis Antony,
s/o late Augusin,
aged about 36 years,
r/at No.4, 8th Main,
Vinayaka Layout,
Chinnappanahalli,
Doddanekundi Extension,
Marathalli, K.R.Puram Hobli,
Bangalore South Taluk.
2. Lijo Mary John,
w/o Francis Antony,
aged about 36 years,
r/o No.49,Lilly Villa,
Bhavani Street,
R.M.Nagar,
Bangalore-560016.
( D.1 & D.2 - By Sri.M.A.S.
Advocate)
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O.S.No.3541/2016
Date of Institution of the suit : 30/4/2016
Nature of the Suit : Declaration & Injunction
Date of commencement of recording
of evidence : 5/10/2018
Date on which the Judgment was
pronounced : 24/2/2021
Year/s Month/s Day/s
Total Duration : 04 09 24
(Dinesh Hegde)
XIX Addl.City Civil & Sessions Judge,
Bangalore City.
JUDGMENT
The plaintiff has filed this suit against defendants for the relief of declaration to declare that the plaintiff is the absolute owner in respect of the suit schedule property and to declare that the gift deeds dated 2/5/2011 and 16/4/2016 as null and void and the same is not binding on the plaintiff.
2. The case of plaintiff in nutshell:-
The plaintiff is the absolute owner and in possession of the house property bearing No.4, 8 th 3 O.S.No.3541/2016 Main, Vinayaka Layout, Chinnappanahalli, Doddanekundi Extension, Marathalli Post, K.R.Puram Hobli, Bangalore South Taluk, measuring East to West 40 ft and North to South 30 ft which is described as schedule property. The plaintiff had purchased the suit schedule property from her vendor for a valuable sale consideration of Rs.72,000/- and the same has been registered before the concerned Sub Registrar dated 2/12/1999. Subsequent to the purchase, the khatha was made in her name and she is paying taxes regularly to the concerned authority. Subsequent to the purchase, the plaintiff has constructed Asbestos sheet house in the suit schedule property and obtained electricity connection and she is residing in the suit schedule property. The defendant is none other than the son of the plaintiff and he is also residing along with the plaintiff in the suit schedule property. The plaintiff is in actual possession and enjoyment of the suit schedule property as a owner without any interference.
3. It is further stated that one J.Lucas had filed a suit against the plaintiff seeking for declaration and for 4 O.S.No.3541/2016 mandatory injunction on the ground that the suit schedule property belong to him before the 26th Addl.City Civil Judge at Mayo Hall, Bangalore in O.S.No.26166/2008. The plaintiff is innocent and ignorant lady and she was suffering from Harniya, due to that reason, she has requested the defendant to prosecute the case and thereafter, the defendant narrated the fact that the plaintiff has to execute a General Power of Attorney to prosecute the case and the said GPA has to be registered before the Sub- Registrar or otherwise he cannot conduct the case on behalf of the plaintiff and she believing the version of the defendant has agreed to execute the G.P.A. in favour of the defendant to prosecute the case. On one fine day, he brought the document and called the plaintiff to the Sub-Registrar's office, the defendant insisted the plaintiff's daughters also have to subscribe their signature as witness to the said G.P.A. The defendant has not read over the contents of the GPA to the plaintiff nor to her daughters. The plaintiff had faith and confidence upon the defendant and without going through the contents of the GPA, the plaintiff 5 O.S.No.3541/2016 had subscribed her signature and also he has obtained the signatures of the plaintiff's daughter as witnesses to the said G.P.A. The defendant did not allow the daughters of the plaintiff to read the contents of the GPA, hurriedly he took the signatures of the plaintiff's daughters and got executed the GPA. Beleiving the version of the defendant, plaintiff's daughters signed the GPA and it was got registered.
4. It is further stated that after execution of the GPA, the plaintiff has requested the defendant to prosecute the case, but he went on telling excuses for one or the other reasons that he won't get leave to appear before this court and to prosecute the case and finally, he had requested the daughter of the plaintiff namely Mary Gladies K.A. to prosecute the case and then again, the plaintiff had executed the special power of attorney in favour of her daughter to prosecute the suit on her behalf and the case has been decided in favour of the plaintiff. Thereafter, the plaintiff has requested the defendant to hand over the GPA, but, he said that GPA is lost and there is no necessity to cancel the GPA, the plaintiff has kept quiet believing the words of the 6 O.S.No.3541/2016 defendant who is none other than the only son of the plaintiff.
5. It is further stated that on 4/2/2016, the defendant and his wife have threatened the plaintiff with dire consequences saying that the suit schedule property belongs to them and the plaintiff has no right over the property in question and she has to vacate and hand over the vacant possession to the defendant. Further, the defendant stated that he has taken the document in his favour and the said document is not a GPA and the plaintiff has no right to continue in possession in respect of the suit schedule property. Then only, the plaintiff has narrated the incident to her daughters and the eldest daughter namely Mary Gladies K.A. and the plaintiff have went to the Sub-Registrar's office and after thorough enquiry, they came to know that the defendant had obtained the Gift Deed by misrepresenting and playing fraud upon the plaintiff and her daughters and he had obtained the fraudulent gift deed. The plaintiff has no other shelter to reside. With great difficulty, the plaintiff had purchased the suit schedule property and constructed asbestos sheet 7 O.S.No.3541/2016 house and she is residing therein. The plaintiff has no love and affection to execute any sort of document in favour of the defendant. Both the daughters of the plaintiff are working as teachers. The husband of Mary Gladies K.A. has neglected and deserted her about 10 years back and the plaintiff was under the impression that she has to give at least half-portion to her to accommodate her daughter in the schedule property. The defendant is also an employee and his wife is also working in Tata Consultancy Service, Sarjapura Road, Bangalore and both are earning well and they have no problem at all to lead their family happily.
6. It is further stated that the plaintiff has no intention, love and affection to execute any gift deed in favour of the defendant and she has not acted upon the gift deed nor delivered the possession to the defendant. The gift deed obtained by the defendant is a fraudulent gift deed and same was obtained by playing fraud upon the plaintiff and as such, the said Gift deed dated 2/5/2011 is null and void and the same is not binding on the plaintiff.
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O.S.No.3541/2016
7. It is further stated that the defendant with an intention to deprive the right of the plaintiff and to create a 3rd party interest over the property, has created a gift deed in favour of the 2 nd defendant. The 1st defendant had obtained gift deed dated 2w/5/2011 by playing fraud upon the plaintiff . The 1 st defendant will not get any right over the suit schedule property on the basis of the gift deed and the same is null and void. The 1st defendant hatched a conspiracy to knock of the suit schedule property hand in glove with the 2 nd defendant who is none other than his wife and created fraudulent gift deed dated 16/4/2016. The 2 nd defendant was having knowledge that the plaintiff had no intention to gift the suit schedule property in favour of the 1st defendant. As such, the 2nd defendant will not get any right or interest over the suit schedule property and the gift deed dated 16/4/2016 is null and void.
8. It is further stated that taking undue advantage of the fraudulent gift deed, the defendant is trying to alienate the suit schedule property in favour of some third parties with an intention to deprive the right of 9 O.S.No.3541/2016 the plaintiff over the suit schedule property and to make unlawful gain. Hence, in the aforesaid facts and circumstances of the case,it is just and necessary to grant an order of permanent injunction restraining the defendant from alienating the suit schedule property in favour of the third parties. Hence, plaintiff has filed this suit. The cause of action arose for the suit on 4/2/2016 when the defendant and his wife have threatened the plaintiff with dire consequences saying that the suit schedule property belongs to them and the plaintiff has no right over the property in question and she has to vacate and hand over the vacant possession to the defendant and thereafter, she has applied for the certified copy of the gift deed and after obtaining the same, the plaintiff came to know about the said illegal and fraudulent gift deed dated 2/5/2011 and also subsequently. The requisite court fee is paid on the separate valuation slip. Hence, prays to decree the suit.
9. After service of suit summons, defendants appeared through their counsel and defendant No.1 10 O.S.No.3541/2016 filed written statement. The 2nd defendant has not filed written statement.
10. In the written statement of defendant No.1, it is contended that the plaintiff was the owner in possession of the house property bearing No.4, 8 th Main, Vinayaka Layout, Chinnappanahalli, Doddenakundi Extn, Marathahalli, Bangalore, measuring East to West - 40ft and North to South - 30 ft since the sale deed was executed in the name of the plaintiff, till the time under the registered Gift deed, the property was gifted in favour of the defendant on 2/5/2011. Thereafter, this defendant has become the absolute owner of the suit schedule property. He has admitted that the suit schedule property was purchased in the name of plaintiff who was unemployed under a registered sale deed dated 2/12/1999. But, the sale consideration was paid by the father of the defendant from his retirement benefit, who retired from the Govt.Service in the year 1998. In pursuance of the registered sale deed standing in the name of plaintiff the khatha was transferred/registered in her name and the taxes were paid in her name so 11 O.S.No.3541/2016 long as the property was standing in her name and subsequent to the gift deed executed in the name of defendant, the khatha is transferred in the name of the defendant and taxes are being paid by him, being the absolute owner. He has further admitted that a sheet roofed house was constructed in the suit schedule property and the power supply connection was obtained in the name of the plaintiff since the property was standing in her name. However, the property was purchased and developed with the retirement money of the husband of the plaintiff and the father of defendant.
11. He has further contended that even after the gift deed was executed by the plaintiff in the name of this defendant, the plaintiff herein continue to reside and occupy the schedule property along with the defendant, his wife and children. At no point of time, this defendant or his wife and children have ever tries to disturb the plaintiff or caused any hindrance for her stay and she can continue staying there throughout her life time. He has further admitted that Mr.J.Lucas has filed O.S.No.26166/2008 on the file of the City Civil 12 O.S.No.3541/2016 Court, Mayo Hall, Bangalore against the plaintiff herein with regard to the suit schedule property. The defendant herein has also assisted the plaintiff herein to conduct the case. He has denied the further averments made by plaintiff and they are conveniently made to suit the reliefs sought in the suit which is otherwise barred by laws and all those plaint averments are denied as false and the plaintiff is put to strict proof of the same. The suit was filed by Mr.J.Lucas in the year 2008 and for conducting the case on behalf of the plaintiff herein, the daughter of the plaintiff Smt.Mary Galadys K.A. was appointed as a Power of Attorney Holder by the plaintiff and she acted as power of attorney holder and conducted the case. Both daughters of the plaintiff are well qualified and employed as teachers and the question of the plaintiff herein executing and registering any document in the presence of both daughters and they signing as witness to the execution without going through the contents of the documents so executed is even unimaginable.
12. He has further contended that the registered 13 O.S.No.3541/2016 gift deed was executed and registered on 2/5/2011 by the plaintiff with full faculty of mind out of her natural love and affection towards her son, the defendant after going through the contents of the documents and understanding the consequence of the same. Both the daughters of the plaintiff also joined as party to the deed and have signed the document as witness to the execution and registration of the Gift Deed dated 2/5/2011 after going through the contents of the deed prepared with the consent of all those who are parties to the deed as per the wishes of the deceased father of the defendant and husband of the plaintiff with whose funds the property was purchased and developed.
13. He has further contended that there was no occasion for the defendant to ask the plaintiff to execute power of attorney in the name of her daughter Mrs.Mary Gladys K.A. and the question of the plaintiff or anybody demanding the defendant to cancel the alleged GPA which was never executed does not arise. The registered gift deed executed by the plaintiff in favour of the defendant since the date of execution was kept in the very same house in the schedule 14 O.S.No.3541/2016 premises where the plaintiff lived along with defendant, in the shelf for which the plaintiff held the key and every time had accesses to the registered gift deed and also the revenue records since the date of its execution. In fact, at the instigation of her daughters in the year 2016 prior to filing of the case on finding that the documents are missing from the shelf, plaintiff herself has admitted that it is in her custody and that she has carried the same and kept in her daughter's house.
14. He has further contended that the schedule property became his absolute property under a registered gift deed dated 2/5/2011 and in spite of that since the beginning, the plaintiff being the mother was taken care of by this defendant alone and in particular, after the death of father of defendant, she continued to reside in the schedule premises being an elderly member being taken care by this defendant. However, under the instigation of the daughters of plaintiff with an intention to grab the property gifted in the name of the defendant before filing the suit, plaintiff herein occasionally started staying with daughters for short 15 O.S.No.3541/2016 duration intermittently of her own. At no point of time, this defendant or his wife said anything and they continue to treat the plaintiff with the love and affection they have towards the mother and mother-in- law and as an elder member of the family. At no point of time, they ever asked the plaintiff to vacate the premises and on the other hand, with an intention to create trouble in the peaceful living at home, the plaintiff started throwing out the belongings of the wife of the defendant. In spite of that, the defendant or his wife never reciprocated to the acts of the plaintiff in any manner. The registered gift deed was executed with the full consent and concurrence as per the wishes of deceased husband of the plaintiff herein, by the plaintiff with her full faculty of mind and the knowledge of its implications, for which both the sisters of the defendant are also party to the deed as the witnesses. The allegation of fraud in getting the documents executed is baseless.
15. He has further contended that his father while in service of 515 Army base workshop, Bangalore, provided education to all his children. Both his 16 O.S.No.3541/2016 daughters after being provided with their education and took up employment before their marriage and later on became teachers. Thereafter, as per the customs prevailed in Kerala Christian Community by giving the share in parents assets by way of jewelery and cash, got married his elder sister Mrs.Mary Gladies in the year 1992 and the second daughter Mrs.Josephine Pearly K.A. in the year 2001. For the purpose of marriage, the only immovable property by then acquired by the father of the defendant during his life time, i.e., a house site at Avalahalli was also sold by him and parted with his life long savings till then and also raised the funds through private borrowings, which he had been repaying till his retirement.
16. He has further contended that the daughters of the plaintiff and the sisters of the defendant are given their share from the side of their parents at the time of their marriage itself by the father of the defendant as per the custom prevailed in the Kerala Christian Community. The only property left out to be given in the share of the defendant was the house property which was purchased with the retirement benefit of 17 O.S.No.3541/2016 father in the name of the mother/ plaintiff. With the consent and concurrence of both the daughters, plaintiff with full faculty of the mind and future implication on execution of the deed that the gift deed was executed relinquishing all her subsisting rights in the property. Both the daughters of the plaintiff have already received their share and they are well off in their family, earning sufficiently to have their living and they themselves are responsible if any thing has happened in their marital life after so many years of marriage. For any reason, if the husband of Mrs.Mary Galdies K.A. have neglected her and the grown up daughter, after they have move about from the matrimonial home owned by her husband, it is for them to proceed against the husband under the available provisions of law, for providing maintenance and also for the residence orders. Both the daughters of plaintiff are senior teachers and their husbands are also earning sufficient being gainfully employed to make their living. The plaintiff cannot act on behalf of her daughters in snatching away the only property, defendant and his family owns for their residence and demand for sharing 18 O.S.No.3541/2016 the schedule property with the daughters of plaintiff who had already received their shares at the time of marriage.
17. He has further contended that plaintiff being a mother who gave birth to defendant after 36 years of living with him cannot now turn around and say that she had no love and affection towards the defendant. The gift deed dated 2/5/2011 is acted upon and the deed itself tells the truth about the delivery of possession and also the possession and enjoyment of the defendant herein. Being the only son responsible to take care of the mother in her old age, in spite of the property being gifted by delivering the possession of the same to the defendant, the plaintiff continued to reside in the schedule premises being an elder family member under the care of the defendant herein. The gift deed in favour of the defendant is dated 2/5/2011 is very much binding on the plaintiff and also her 2 daughters (1) Smt.Mary Gladies K.A. and (2) Smt.Josephine Pearly, who are party to the deed and signed as witnesses to the execution of registered gift deed. The plaintiff is well aware that the property 19 O.S.No.3541/2016 needs to be developed by availing housing loan under a registered gift deed dated 6/4/2016, the defendant has gifted the property in the name of his wife Mrs.Lijo Mary John. On coming to know bout the gift deed inf favour of the wife of defendant, under the instigation of the sister of the defendant, Mrs.Mary Galdies K.A. in particular, the above suit is filed by the plaintiff. Relief of injunction cannot be granted against the true owner in possession and enjoyment of the property and knowing fully well the same, even though pleaded therein, no such relief is also sought by the plaintiff in the suit. The defendant or his wife who is the present owner of the property have no intention to sell the only house property they have for the family to reside. The suit is bad for non-joinder of necessary parties.
18. He has further contended that the suit is barred by law of limitation. Regarding the court fee, the relief sought in prayer "(i)" is for a declaration that the plaintiff is the absolute owner in respect of the suit schedule property and at prayer "(ii)" for a declaration that the gift deed dated 2/5/2011 is null and void. For the relief at prayer(i) plaintiff has to pay court fee as 20 O.S.No.3541/2016 per Section 24(a) for the relief at prayer (ii) plaintiff has to pay the court fee as per Section 38 of the Karnataka Court Fee & Suit Valuation Act based on the market value of the schedule property as on the date of filing the suit. The suit schedule property is a BBMP site with built up area of 450 sq.ft and the present government guidelines, value of the suit schedule property is Rs.53,79,150/-. The plaintiff has not paid the proper court fee on the plaint and the plaint is liable to be rejected on that ground alone. This defendant out of his natural love and affection towards his wife has gifted the property under a registered gift deed dated 6/4/2016 in favour of his wife and the plaintiff is well aware of the transaction on the property and intentionally did not made the real owner in possession of the property as on the date of filing of the suit and the suit is bad for non-joinder of necessary parties. There is no cause of action for the present suit. The gift deed is executed by the plaintiff on 2/5/2011 by delivering the vacant possession of the schedule property in favour of the defendant and the present suit for the declaration that the gift deed is null and 21 O.S.No.3541/2016 void and also to declare that the plaintiff is the absolute owner of the schedule property is filed on 30/4/2016 which is beyond the period of 3 years as contemplated under Article 58 and 59 of the Limitation Act and the very suit claim itself is barred by laws including the law of limitation. Hence, the defendant prayed to dismiss the suit of plaintiff with exemplary costs.
19. Based on the above pleadings, the following issues were framed:-
Issue No.1 & 2 are deleted as per the order dated: 20/2/2021.
Issue No.3:- What Order or decree?
ADDITIONAL ISSUES
1. Whether the plaintiff proves that she is the absolute owner of the schedule property?
2. Whether the plaintiff proves that the signature of plaintiff was obtained on General Power of Attorney by defendant by making false representation that plaintiff will be executing General Power of Attorney to contest the suit filed against plaintiff and defendants by one J.Lucas O.S.No.26166/2008 pending before XXVI Addl.City Civil Court?22
O.S.No.3541/2016
3. Whether the plaintiff further proves the signature of plaintiff was obtained on Gift Deed dated 2/5/2011 by making false representation and exercising fraud which she never intended to execute in favour of defendant - Francis Antony?
4. Whether plaintiff proves that said Gift Deed dated 2/5/2011 alleged to have been executed in favour of defendant has no binding effect on tittle of plaintiff's right to hold the property as owner?
5. Whether the suit of the plaintiff is bad for non-
joinder of necessary parties?
6. Whether the suit of the plaintiff is barred by limitation?
7. Whether the court fee paid by plaintiff is valued under S.24(B) under KCF & SV Act properly?
20. Plaintiff has been examined as P.W.1 and others 2 witnesses are examined as P.W.2 & 3 and marked Ex.P.1 to Ex.P.12. The defendant No.1 has been examined as D.W.1 and marked Ex.D.1 to Ex.D.3.
21. Heard the arguments and perused the records.
22. My findings on the above issues are as follows:- 23
O.S.No.3541/2016 Issue No.1:- Deleted as per Order dated 20/2/2021.
Issue No.2:- Deleted as per Order dated 20/2/2021.
Addl.Issue No.1:- In the Affirmative; Addl.Issue No.2:- In the Affirmative; Addl.Issue No.3:- In the Affirmative; Addl.Issue No.4:- In the Affirmative; Addl.Issue No.5:- In the Negative; Addl.Issue No.6:- In the Negative; Addl.Issue No.7:- In the Negative; Issue No.3:- As per the final order for the following:-
REASONS
23. ADDITIONAL ISSUE No.1 to 4:- These issues are taken up together for consideration in order to avoid repetition of facts.
24. It is the specific case of the plaintiff that she is the absolute owner of the suit schedule property by virtue of a sale deed dated 2/12/1999. It is further case of the plaintiff that the defendant No.1 being her son created a gift deed in his favour by mis- representation and by playing fraud and hence, the gift deed dated 2/5/2011 is null and void and not binding on her title over the suit schedule property. 24
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25. To prove the contention of the plaintiff, she has been examined as P.W.1 and relied upon Ex.P.1 to Ex.P.12. The relationship of the plaintiff and the defendant No.1 is not in dispute. Ex.P.1 is the encumbrance certificate with respect of the property bearing House No.4, 8th Main, Vinayaka Layout, Channappana Layout, Doddanakundi Extension, Marathhalli Post, measuring 30 x 40 ft, RCC roofed house property shown as gifted in favour of defendant No.1 by the plaintiff under the gift deed dated 2/5/2011. Ex.P.2 is the NIL Ec reveal that from 1/4/2014 to 17/7/2018 the same property is not encumbered. Ex.P.3 is the special power of attorney executed by plaintiff in favour of her daughter Mary Gladies to do the acts and deeds in respect of O.S.No.26116/2008 on the file of the City Civil Judge, at Bangalore. Ex.P.4 to Ex.P.7 are the electricity bills and receipts showing the RR Number and khatha number.
26. Ex.P.8 is the original sale deed dated 2/12/1999 reveal that the plaintiff by name Smt.Elizebeth had purchased the suit schedule property from her vendor M.M.Krishna Reddy for a valuable sale consideration of 25 O.S.No.3541/2016 Rs.72,000/-. Based on the sale deed, the 'B' khatha was entered in the name of plaintiff and khatha extract was issued by BBMP on 14/10/2009 under Ex.P.9. Ex.P.10 is the tax-paid receipt reveal the plaintiff has paid the property tax.
27. Ex.P.11 is the certified copy of the judgment in O.S.26116/2008 shows that one Mr.J.Lukasi Joseph filed a suit for declaration and injunction against the plaintiff herein on the file of the Addl.City Civil Judge at Mayo Hall, Bangalore. After contest, the said suit came to be dismissed. Ex.P.12 is the certified copy of the gift deed dated 2/5/2011 executed by Smt.Elizebeth who is the plaintiff herein in favour of Sri.Franic Anthony who is the defendant No.1 herein and this document is questioned in the present suit contending that the same was came to be executed by false representation and by fraud.
28. Under Order 6 Rule 4 of the Code of Civil Procedure, "in all cases in which the party pleadings relies on any misrepresentation, fraud, breach of trust, willful default or undue influence and in all other cases, in which particulars may be necessary beyond such as 26 O.S.No.3541/2016 are exemplified in the forms aforesaid, particulars shall be stated in the pleading.
29. Where fraud is charged against the defendant, it is an acknowledged rule of pleading that the plaintiff must set-forth the particulars of the fraud which he alleges. It is not enough to use such general words as fraud.
30. The learned advocate appearing for the plaintiff has relied upon the following decisions with respect of the above issues.
1. In AIR 2003 Orissa page 123 between Smt.Nishamani Singh - Vs - Nishamani Dibya and others, wherein, it was 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 signature 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 27 O.S.No.3541/2016 attestation also not proved - No benefit can be derived by donee from such deed."
2. In AIR 2011 SC page 1492 betweeen H.Siddiqui (dead) by Lrs - Vs - A.Ramalingam, wherein, the Hon'ble Supreme Court has held that:-
"(A) Evidence Act (1 of 1872), S.65 -
Secondary evidence - Photocopy of
document - Admissibility - Executor
merely admitted his signatures on
photocopy of power of attorney but denied its content thereof - Court without considering probative value of contents of document, decreed suit for specific performance - Improper.
In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non- production of the original is accounted for, so as to bring it within one or other of the cases provided for in S.65. The secondary evidence must be authenticated by foundational evidence that the alleged 28 O.S.No.3541/2016 copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The Court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. Where the respondent had merely admitted his signature on the photocopy of the power of attorney and did not admit the contents thereof and the trial Court without examining whether contents thereof had probative value decreed the suit for specific performance, the approach of trial Court was held to be improper."
3. In Kerala High Court between "Velayudhan - Vs - Velayudhan", wherein it was held that:-
"9. To sign means to affix the signature. But when it comes to the signing of a written instrument, it implies more than the act of affixing a signature. It implies more than the clerical act of writing the name. The intention of the person signing is important. The person should have affixed the signature to the instrument in token of an intention to be bound by its 29 O.S.No.3541/2016 conditions. It has been said that for a signing consists of both the act of writing a person's name and the intention in doing this to execute, authenticate or to sign as a witness. The execution of a deed or other instrument includes the performance of all acts which may be necessary to render it complete as a deed or an instrument importing the intended obligation of every act required to give the instrument validity, or to carry it into effect or to give it t forms required to render it valid. Thus, the signature is an acknowledgment that the person signing has agreed to the terms of the document. This can be achieved only if a person signs after the document is prepared and the terms are known to the person signing. In that view of the matter, mere putting of signature cannot be said to be execution of the document."
4. In AIR 1971 Allahabad page 29 between "Arjun Singh v/s Virendra Nath and another), wherein, it was held that:-
"(B) Evidence Act (1 of 1872), S.8, S.17, S.114 - Admission or conduct of party -
Party living and capable of giving evidence 30 O.S.No.3541/2016 must come forward to explain it - Failure to explain - Adverse inference.
The explanation of any admission or conduct on the part of a party must, if the party is alive and capable of giving evidence, come from him and the court would not imagine an explanation which a party himself has not chosen to give. If such a party abstains from entering the witness box it must given rise to an inference adverse against him."
5. In AIR 1931 Bombay page 97 (Martand Pandhrinath Chaudhari v/s Radhabai Krishnarao Deshmukh), wherein, it was held that:-
"(b) evidence person personally knowing the facts and circumstances must give evidence on his own behalf and submit to cross-examination - His non-appearance is circumstance against him.
It is the bounden duty of a party personally knowing the facts and circumstances to give evidence on his own behalf and to submit to cross-examination and his non appearance as a witness would be the strongest possible circumstances which will go to discredit the truth of his case."
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O.S.No.3541/2016
6. In AIR 1977 NOC 211 (J & K) between Krishen and others v/s Bihari Lal Suri, wherein, it was held that:-
"Evidence Act (1872), S.67 - Execution of document - Proof.
Execution denotes a conscious act of subscribing to a document. In order to prove the execution of a document it must be shown that the person executing it consciously subscribed to it in the sense that he put his mark or signature on it after having known and understood its contents. Mere proof that the person's signature appears on the document cannot, by itself, amount to execution of the document."
7. In (2003) 8 SCC page 740 "Kashi Nath (Dead Through Lrs v/s Jaganath", wherein, it was held that:-
"A. Civil Procedure Code, 1908 - Or.6 R.1 and Or.18 R.2 - Pleadings and evidence - Variance - Held, such evidence cannot be relied upon - Further held, an adverse inference is to be drawn when pleadings and evidence are self- contradictory - Hindu Law - Adoption -32
O.S.No.3541/2016 Proof."
8. In ILR 2004 Kar page 3079 between Venkataramanappa v/s Narasaiah, wherein, it was held that:-
"(A) Indian Evidence Act, 1872 - section 68 - Examination of the attesting witness under - Held - If the execution of the document itself is denied by the executant, if there are attesting witnesses to the document, the examination of such witness to prove the execution of the document becomes necessary."
31. On perusal of the plaint, in Para No.7, it is averred that "the plaintiff is a innocent and ignorant lady and she was suffering from disease and due to that reason, she has requested the defendant No.1 to prosecute the case in O.S.No.26116/2008 and thereafter the defendant No.1 narrated the facts, the plaintiff has to execute a General Power of Attorney to prosecute the case and the said GPA has to be registered before the Sub-Registrar or otherwise he cannot conduct the case on behalf of the plaintiff. Believing the version of the defendant, the plaintiff has 33 O.S.No.3541/2016 agreed to execute the GPA in favour of the defendant to prosecute the case. The defendant No.1 brought the document and called the plaintiff to Sub-Registrar's office and insisted the plaintiff's daughters also have to subscribe their signature as witnesses to the GPA. Further, it is averred in the plaint that the defendant has not read over the contents of the GPA to the plaintiff or her daughters. With the faith and confidence upon the defendant No.1 and without going through the contents of GPA, the plaintiff put her signature and also obtained the signature of daughter as witness. The defendant did not allow the daughters of the plaintiff to read over the document.
32. It is further averred in para No.8 that after execution of the GPA, the plaintiff has requested the defendant to prosecute the case. But, he went on telling excuses for one or the other reason that he won't get leave to appear before this court and prosecute the case and finally, he had requested the daughter of the plaintiff namely Mary Gladies to prosecute the case and then again, the plaintiff executed a special power of attorney in favour of her 34 O.S.No.3541/2016 daughter to prosecute the suit and she has prosecuted the case on behalf of the plaintiff and the case has been decided in favour of the plaintiff herein. It is further averred that the plaintiff has requested the defendant to hand over the GPA, but he said, he lost and there is no necessity to cancel the GPA. Believing the words of defendant No.1, the plaintiff has kept quite. On 4/2/2016, the defendant and his wife have threatened the plaintiff saying that the suit schedule property belongs to them. The plaintiff had no intention to execute the gift deed in favour of the defendant No.1 and she has not acted upon the gift deed nor she delivered the possession. The gift deed was obtained by means of mis-representation and fraud. "
33. Therefore, it is clear that there is specific pleadings in the plaint as to the mis-representation and fraud as contemplated under Order 6 Rule 4 of the Code of Civil Procedure.
34. Ex.D.1 is the original Gift Deed dated 16/4/2016 was produced by the defendant No.1 during his 35 O.S.No.3541/2016 examination-in-chief as D.W.1 which shows that Francis Anthony who is the defendant No.1 herein in turn executed another Registered Gift Deed in favour of his wife who is the defendant No.2 herein.
35. Under Section 122 of the Transfer of Property Act, 1882, a gift is a transfer of certain existing movable or immovable properties made voluntarily and without consideration, by one person called a donor to another called donee and accepted by or on behalf of the donee. Such acceptance must be made during the life time of the donor and while he was still capable of giving. If the donee dies before acceptance, the gift is void. Therefore, it is clear that one of the ingredient of due execution of Will is voluntary execution by the donor. Here, the plaintiff contended that the gift deed executed in the name of defendant No.1 by misrepresentation and fraud under the impression that it was a general power of attorney. No doubt, based on the Gift Deed under Ex.D.1, the khatha of the suit schedule property changed in to the name of defendant No.2 as per Ex.D.2 and she has also paid the property tax as reflected in Ex.D.3. There is no recital 36 O.S.No.3541/2016 in the gift deed that the donee has accepted the gift as contemplated under Section 122 of the Transfer of Property Act.
36. Apart from the documentary evidence, the plaintiff has adduced her oral evidence and she has examined 2 witness as P.W.2 & 3. In the examination- in-chief, the plaintiff has reiterated the facts averred in the plaint. In her cross-examination, she has stated that she do not know Kannada language. Except Malayalam language she do not know any other language. She has purchased the schedule property for the valuable sale consideration. She has three children i.e., two daughters and a son and she has natural love and affection towards her son. She has further stated that, she has not visited the Sub- Registrar office nor she executed power of attorney before the Sub-Registrar. In the Sub-Registrar office her signature and thumb impression were taken, nobody were present when she went to the Sub- Registrar office. She went to the Sub-Registrar office along with her son. She did not ask Smt.Vijayalakshmi advocate regarding execution of the power of attorney 37 O.S.No.3541/2016 in O.S.No.26166/2008, she did not ask the contents of the power of attorney. She went to the Sub-Registrar office to execute the power of attorney. She asked the Sub-Registrar as to the nature of the document and he told that it is a General Power of Attorney.
37. P.W.1 has further stated that, in the year 2016 that she came to know that it is not a GPA but it is a gift deed when her son and daughter-in-law told her that it is a gift deed. A signature found in Ex.P.12 is admitted as her signature and it also bears the signature of her daughters.
38. The plaintiff has also examined two witnesses as P.W.2 and P.W.3. P.W.2 is none other than the daughter of the plaintiff in her evidence by way of affidavit stated that, the plaintiff is the owner of the schedule property and subsequently she has constructed house. Herself and her sister went to the Sub-Registrar office and the defendant No.1 had obtained their signatures in a document and he did not allow them to read its contents. In her cross-examination she has stated that, she is the first daughter of the plaintiff and her house is 38 O.S.No.3541/2016 situated at next cross road of the plaintiffs house and every day she used to meet the plaintiff. She has separated from her husband about 40 years back, but their marriage was not dissolved by a court decree. She is an English literature graduate and working as a school teacher. She has denied the suggestion that, the defendant No.1 shown the original gift deed to all of them. The defendant asked them to sign a folded document, but she has admitted her signature in the gift deed.
39. P.W.3 is also a witness who is none other than another daughter of the plaintiff. In her examination in chief she has reiterated the examination in chief of P.W.2. In her cross-examination stated that, her house is situated at Muniswamy lane, Shivajinagar around 15 kms away from the plaintiff's house. The defendant asked her to come to the Sub- Registrar office and hence she went to the Sub- Registrar office by auto rickshaw. At that point of time, the registration process was over. Her brother i.e., the defendant No.1 was holding a document and asked to sign and Ex.P.12 bears her signature. The execution of 39 O.S.No.3541/2016 gift deed came to her knowledge on 04.02.2016.
40. D.W.1 who is none other than the defendant No.1 in his evidence by way of affidavit reiterated the facts stated in the written statement. He has also relied upon Ex.D.1 to Ex.D.3 referred above, however, D.W.1 did not turn up for cross-examination. Hence, the court observed that, he has not tendered himself for cross- examination. Therefore, the evidence of defendant No.1 does not survive for consideration. Moreover, the defendant No.2 who claims to be the owner of the suit schedule property by virtue of the subsequent gift deed dated 16/04/2016 executed by the 1 st defendant in her favour is also not stepped into the witness box.
41. Section 31 of the Specific Reliefs Act, 1963, deals with cancellation of instruments. Any person against whom a written instrument is void or voidable and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have adjudged void or voidable and the court may in its discretion so adjudge it and order it to be delivered up and cancelled. Under Section 31(2) 40 O.S.No.3541/2016 of the Specific Reliefs Act, if the instrument has been registered under the Indian Regn.Act, 1908, the court can also send a copy of decree to the officer in whose office the instrument has been registered and such officer shall note on the copy of the instrument the fact of cancellation.
42. The relief of cancellation of an instrument is founded upon the administration of the protective justice for fear that the instrument may be vexatious or injurious used by the defendant against the plaintiff when the evidence is impeached it may be lost or that it may throw a cloud or suspicion over his title or interest. An agreement not enforceable by the law is said to be void. An agreement which is enforceable by law at the option of one or more of the parties thereto, but at the option of the other or others is a voidable contract. A registered document can be invalidated only by a competent court of law under section 31 of Specific Reliefs Act, 1963 and can be cancelled by following the procedure prescribed under Rule framed under the Registration Act, 1908.
41
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43. The plaint averments and the documents produced by the plaintiff coupled with oral evidence of P.W.1 to P.W.3 clearly establishes that, the 1 st defendant being the son of the plaintiff got it a gift deed in his favour by mis-representation and fraud and subsequently he executed another gift deed in favour of his wife i.e., defendant No.2 on 16.04.2016. The plaintiff has proved that, she is the owner of the suit schedule property and her signature was obtained by making false representation that, she is executing General Power of Attorney, but the defendant No.1 obtained a gift deed in his favour as per the deed dated 02.05.2011. The gift deed dated 02.05.2011 is not binding on the plaintiff and liable to be canceled. The gift deed dated 16.04.2016 executed by the 1 st defendant in favour of defendant No.2 is also null and void and liable to be canceled. Hence, I answer Additional issue No.1 to 4 in the Affirmative.
44. ADDITIONAL ISSUE NO.5: - In the written statement of the defendant No.1, in Para No.16, has averred that he out of natural love and affection 42 O.S.No.3541/2016 towards his wife has gifted the property under a registered Gift Deed dated 6/4/2016 in favour of his wife and the plaintiff is well aware of the transaction of the property and intentionally did not made the real owner in possession of the property as on the date of filing of the suit and hence, the suit is bad for non- joinder of necessary parties.
45. When such being the contention of the defendant No.1, the plaintiff filed an application under Order 1 Rule 10(2) of CPC in I.A.No.19 to implead the proposed defendant contending that the defendant at the time of filing written statement has averred that he had gifted the suit schedule property to his wife and he has not mentioned the registration number and on which date, month and year, the gift deed came to be registered before the Sub-Registrar. She went to the Sub- Registrar's office and obtained EC and in the encumbrance certificate, there was no mention of the gift deed executed by defendant No.1 in favour of his wife. The defendant produced the gift deed executed by him in favour of his wife.
43
O.S.No.3541/2016
46. Therefore, the plaintiff has contended that the wife of the defendant is also necessary party in order to determine the real issue in controversy between the parties. I.A.No.19 filed by the plaintiff came to be allowed vide order dated 234/10/2019 and the wife of the defendant is brought on record as defendant No.2. Further, the plaintiff filed another application in I.A.No.20 to amend the plaint to the effect that as to how the gift deed dated 16/4/2016 executed by the 1 st defendant in favour of the 2nd defendant came in to existence and also prayed for additional relief of declaration that the gift deed dated 16/4/2016 executed by the 1st defendant in favour of the 2nd defendant is null and void and the same is not binding on the plaintiff. This application was also came to be allowed vide order dated 20/2/2020. After impleading, the 2nd defendant though she appeared through her advocate, has not filed her written statement. More over, the 1st defendant has also not filed his additional written statement on the amended plaint.
47. Therefore, it is clear that during the pendency of the suit, the 2nd defendant has come on record and 44 O.S.No.3541/2016 the defect of non-joinder of necessary party was cured during the pendency of the suit. Hence, the suit is not bad for non-joinder of necessary party. Hence, I answer Additional Issue No.5 in the Negative.
48. ADDITIONAL ISSUE No.6:- The defendant No.1 in his written statement, in Para No.17, has contended that there is no cause of action to file the suit since the gift deed executed by the plaintiff on 2/5/2011 by delivering the vacant possession of the schedule property in favour of the defendant and the present suit for the declaration that the gift deed is null and void and also for the relief of declaration of title is filed on 30/4/2016 which is beyond the period of 3 years as contemplated under Article 58 and 59 of the Limitation Act. Hence, the suit itself is barred by law of limitation.
49. Under Article 59 of the Limitation Act, 1963, to file a suit for cancellation or set-aside an instrument or decree or for the rescission of a contract is 3 years. The time limit of 3 years commences from the date when the facts entitling the plaintiff to have the instrument or decree cancelled or set-aside or the 45 O.S.No.3541/2016 contract rescinded first become known to him. Therefore, it is clear that period of the limitation of 3 years commences from the date when it come to the knowledge of the plaintiff with respect of execution of deed.
1. In ILR 1989 Kar page 993 between "Dada Jinnappa Khot v/s Shivalingappa Ganapati Bellanki", wherein, it was held that:-
"Limitation Act, 1963 (Central Act No.36 of 1963) - Article 58 - "When right to sue first occurs" connotes date when right to sue first accrued although cause of action may have arisen even on subsequent occasions - Right to sue treated as arisen when clear and unequivocal threat made giving rise to compulsory cause of action.
HELD :
Under Article 58 of the Limitation Act the time to assert and to rise up against invasion of one's right occurs when the aberration to the plaintiff's right or the slighting of the plaintiff's right occurs for the first time. Under the new Act with the change in the language of the Statute the same having become more specific and precise with the inclusion of the words 46 O.S.No.3541/2016 "when right to sue first accrues,"there can be little doubt that although a cause of action may have arisen even on subsequent occasions as well, what is material for the purpose of computing the period of limitation under Article 58 is the date when the right to sue first accrued. The right to sue can be treated as having arisen when there was a clear or unequivocal threat proceeding from the opponent and that a threat which clearly invades or jeopardises the plaintiff's right can be taken as giving rise to a compulsory cause of action to take steps for smothering such a threat."
2. In AIR 2018 SC 2447 between "Chhotanben and another - Vs - Kiitbhai Jalkrushnabhai Thakkar and others", wherein, it was held that:-
"In the present case, we find that the appellants (plaintiffs) have asserted that the suit was filed immediately after getting knowledge about the fraudulent sale deed executed by original defendant No.1 and 2 by keeping them in the dark about such execution and within two days from the refusal by the original defendant No.1 and 47 O.S.No.3541/2016 2 to refrain from obstructing the peaceful enjoyment of use and possession of the ancestral property of the appellants."
50. In the plaint, in Para No.12, it is categorically averred that the cause of action arose for the suit on 4/2/2016 when the defendant and his wife have threatened the plaintiff with dire consequences that the suit schedule property belongs to them and the plaintiff has no right over the property in question and she has to vacate and hand over the vacant possession to the defendant and thereafter, she has applied for the certified copy of the gift deed and after obtaining the same, the plaintiff came to know about the fraudulent gift deed 2/5/2011.
51. In the cross-examination of P.W.1, there is no such serious questions put to her to elicit that plaintiff had knowledge of the execution of gift deed even prior to 4/2/2016. More over, the encumbrance certificate produced by the plaintiff under Ex.P.1 commencing from 1/4/2011 to 29/7/2018 only discloses the execution of the gift deed dated 2/5/2011. But, this encumbrance certificate reveal that it was obtained by 48 O.S.No.3541/2016 the plaintiff on 30/7/2018. Ex.P.2 is the NIL encumbrance certificate commencing from 1/4/2014 to 17/7/2018 does not disclose any encumbrance.
52. Therefore, it is clear that the factum of execution of the gift deed came to the knowledge of plaintiff only on 4/2/2016 when the defendants asserted their title over the suit schedule property based on the gift deed dated 2/5/2011. The suit of the plaintiff was instituted on 30/4/2016. Therefore, it is clear that the plaintiff has filed the present suit within 3 years from the date of knowledge of the execution of the gift deed. Therefore, the suit of the plaintiff is well within the time of limitation. For the above reasons, I answer Additional Issue No.6 in the Negative.
53. ADDITIONAL ISSUE No.7:- In para No.13 of the written statement, the defendant No.1 has contended that the plaintiff sought for the relief of declaration that she is the owner of the schedule property and also sought for a declaration that the gift deed dated 2/5/2011 is null and void. For the relief at prayer (I), plaintiff has to pay court fee as per Section 24(a) for 49 O.S.No.3541/2016 the relief of prayer of (ii) and plaintiff has to pay court fee as per S.38 of the Karnataka Court Fee and Suits Valuation Act based on the market value of the schedule property as on the date of filing of the suit. The defendant No.1 has further contended that the schedule property is a BBMP site with built up area of 450 sq.ft and the present Govt.Guideline value of the suit schedule property is Rs.53,79,150/-. Hence, he has contended that the court fee paid is insufficient.
54. On perusal of the plaint, no doubt, the plaintiff has sought for the relief of declaration of title and declaration dated 2/5/2011 as well as the gift deed 16/4/2016 are null and void.
55. The valuation slip annexed to the plaint reveal that the plaintiff filed a suit for declaration and permanent injunction and the suit schedule property is valued for the purpose of court fee and jurisdiction at Rs.27 Lakhs. Hence, the court fee paid u/s 24(b) of the Karnataka Court Fee and Suit Valuation Act. The method adopted to arrive at the valuation is the valuation of the schedule property at Rs.27 Lakhs and the court fee paid half of the market value in view of 50 O.S.No.3541/2016 S.24(B) of Karnataka Court Fee and Suit Valuation Act and Rs.25/- for permanent injunction. So, the plaintiff has paid total court fee of Rs.79,625/-.
56. In (2017) 11 SCC 852 between "J.Vasanthi and others v/s N.Ramani Kanthammal and others", the Hon'ble Apex Court held that "suit for declaration that the sale deeds were fabricated and hence, void - held, in suit for declaration for treating documents null and void, which basically amounts to seeking relief of cancellation of documents, and where original plaintiff was party to such transaction, as in the instant case, the court fee is to be computed on value of subject-matter of suit i.e., under section 40 - impugned judgment affirming order of trial court rejecting defendant's application praying for directive to plaintiff to pay court fee under section 40, unsustainable - trial court to grant 3 months time to plaintiff to pay requisite court fees. "
57. In a suit for declaration and injunction, fee has to be paid on one half of the market value or Rs.1,000/- which ever is higher. Under Section 24(d) 51 O.S.No.3541/2016 whether the subject matter of the suit is capable or not, fee shall be paid on the amount at which the relief is valued in the plaint.
58. In a suit for cancellation, the court fee has to be paid on the amount of the decree for which it is passed. , if the suit is for cancellation of the decree for money. If the suit is for cancellation of decree of property, then, court fee has to be paid on the value of the property. Similarly, in the position with regard to the suit for cancellation of document. The value of the property in S.38(1) of the Karnataka Court Fee and Suit Valuation Act must be under stood as the market value of the property and not the amount of consideration mentioned in the deed sought to be cancelled and therefore, in a suit for cancellation of gift deed, the plaintiff is justified in valuing the suit on the basis of market value of the property which is the subject-matter of the suit.
59. Section 38 of the Karnataka Court Fee and Suit Valuation Act deals with payment of court fee in a suit for cancellation of decree etc. (1) In a suit for 52 O.S.No.3541/2016 cancellation of a decree for money or other property having a money value or other document which purports or operates to create, declare, assign, limit or extinguish whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject-matter of the suit and such value shall be deemed to be:-
if the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed.
If a part of the decree or the other document was sought to be cancelled, such part of the amount or value of the property.
(2)If the decree or the other document is such that the liability under it cannot be split up and the relief claimed relates only to a particular item of property belonging to the plaintiff or to the plaintiff's share in any such property, fee shall be computed on the value of such a property or share or on the amount of the decree which ever is less.53
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60. The value stated in the gift deed shall be deemed to be the value of the property for which the gift deed was executed. If value is not stated, computation shall be based on the market value of property as on the execution of the document. It is relevant that Section 24 has no application to the suit filed for cancellation of document referred to in Section
38.
61. As the value of the property is not stated in the gift deed, the plaintiff is liable to pay court fee on market value of the gifted property as on the date of its execution as per the provisions of the Karnataka Court Fee and Suit Valuation Act.
62. Admittedly, the plaintiff has valued the suit under Section 24(B) of the Karnataka Court Fee and Suit Valuation Act and not under section 38 of the said Act. Therefore, it is clear that the prayer of the plaintiff amounts to cancellation of the document which requires valuation of the suit under section 38 of the Karnataka Court Fee and Suit Valuation Act. Hence, I answer the Additional Issue No.7 in the Negative holding that plaintiff is liable to value the suit u/s 38 of 54 O.S.No.3541/2016 Karnataka Court Fee and Suit Valuation Act.
63. ISSUE No.3:- The plaintiff has proved that she is the owner of the suit schedule property and both the gift deeds dated 2/5/2011 and 16/4/2016 are null and void. Hence, they are liable to be cancelled. In view of findings on the above Addl.Issue No.1 to 7, I pass the following:-
ORDER Suit of the plaintiff is decreed with costs. It is hereby declared that plaintiff is the absolute owner of the suit schedule property.
It is further declared that the Gift Deed executed by the plaintiff in favour of the 1 st defendant dated 2/5/2011 and the Gift Deed executed by the 1st defendant in favour of the 2nd defendant dated 16/4/2016 are null and void and hereby cancelled.
Send a copy of the decree to the Senior Sub- Registrar, Mahadevapura, Bangalore who registered the gift deed dated 2/5/2011 bearing document No.MDP1-00585-2011-12 CD No.MDPD 83 and to the Sub-Registrar, Shivajinagara (Banasawadi) Bangalore who registered the Gift Deed dated 16/4/2016 bearing document No.BNS-1-00615-2016-17 CD No.BNSD 435 for making necessary note on the copy of the instrument contained in their books the fact of its 55 O.S.No.3541/2016 cancellation as per Section 31(2) of the Specific Reliefs Act, 1963.
Office is directed to draw decree accordingly only after payment of deficit court fee by the plaintiff.
(Dictated to the Judgment Writer, transcribed and computerized by her, corrected and then pronounced by me in the open Court on this the 24th day of February 2021.) (Dinesh Hegde) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Smt.Elizebethooo P.W.2 - Smt.Mary Gladies.K.A P.W.3 - Josephone Pearly K.A.
b) Defendants' side :
D.W.1 - Francis Antony II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 & Ex.P.2 2 NIL encumbrance certificates
Ex.P.3 Special power of attorney dated
11/1/2013
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O.S.No.3541/2016
Ex.P.4 Electricity Bills
Ex.P.5 Water supply bill
Ex.P.6 11 BESCOM Bills
Ex.P.7 9 water bills
Ex.P.8 Original sale deed dated
2/12/1999
Ex.P.9 Form-B property register extract
Ex.P.10 Tax-paid receipt
Ex.P.11 Certified copy of the judgment
passed in O.S.No.26166/2008
Ex.P.12 Certified copy of the Gift Deed
dated 2/5/2011
(b) Defendants' side : -
Ex.D.1 Original Gift deed dated
16/4/2016
Ex.D.2 Property Register Extract
Ex.D.3 Tax-paid receipt
(Dinesh Hegde)
XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
GVU/-57
O.S.No.3541/2016 Judgment pronounced in open court vide separate detailed judgment with the following operative portion:-
ORDER Suit of the plaintiff is decreed with costs. It is hereby declared that plaintiff is the absolute owner of the suit schedule property.
It is further declared that the Gift Deed executed by the plaintiff in favour of the 1 st defendant dated 2/5/2011 and the Gift Deed executed by the 1st defendant in favour of the 2nd defendant dated 16/4/2016 are null and void and hereby cancelled.
Send a copy of the decree to the Senior Sub- Registrar, Mahadevapura, Bangalore who registered the gift deed dated 2/5/2011 bearing document No.MDP1-00585-2011-12 CD No.MDPD 83 and to the Sub-Registrar, Shivajinagara (Banasawadi) Bangalore who registered the Gift Deed dated 16/4/2016 bearing document No.BNS-1-00615-2016-17 CD No.BNSD 435 for making necessary note on the copy of the instrument contained in their books the fact of its cancellation as per Section 31(2) of the Specific Reliefs Act, 1963.
Office is directed to draw decree accordingly only after payment of deficit court fee by the plaintiff.
XIX ACCJ, Bangalore.