Bangalore District Court
Sri. Sukumar Arnold S/O vs Sri. D. Joseph on 24 November, 2018
IN THE COURT OF THE XXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH-38), BANGALORE CITY.
PRESENT:
SRI. H. CHANNEGOWDA, B.Sc., LL.B.,
XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38)
BANGALORE
DATED: THIS THE 24th DAY OF NOVEMBER 2018
OS.NO.7980 / 2013
PLAINTIFF/S 1. SRI. SUKUMAR ARNOLD S/O
MR. D.S. ARNOLD, AGED
ABOUT 71 YEARS.
2. SMT. SHEILA ARNOLD W/O
MR. SUKUMAR ARNOLD,
AGED ABOUT 65 YEARS.
BOTH ARE RESIDING AT No.
297/115, JACOBS LANE, JOSHUA
STREET, NAGERCOIL - 629 001,
TAMIL NADU.
(By Sri. M.A. Sebastian, Adv.)
Versus
DEFENDANT/S 1. SRI. D. JOSEPH
DHARMASINGH S/O MR.
DHAS, AGED ABOUT 74
YEARS.
2. SMT. VICTORIA SELVI BEULAH
W/O JOSEPH DHARMASINGH
AGED ABOUT69 YEARS.
BOTH ARE RESIDING AT No. 5
N/1, JACOB STREET,
ASARIPALLAM ROAD,
2 O.S. No. 7980 / 2013
NAGERCOIL - 629 001, TAMIL
NADU.
3. SRI. ASHWANI KUMAR
SHARMA, MAJOR IN AGE,
FATHER'S NAME NOT KNOWN
TO THE PLAINTIFFS SAP LABS
INDIA PVT. LTD. No.138, EPIP
ZONE, WHITEFIELD,
BANGALORE - 560 066.
RESIDING AT FLAT No. 014,
GROUND FLOOR, BLOCK No.
III, 'BRUNDAVAN
PRESIDENCY", 26, 'A' CROSS,
NEAR IBP PETROL BUNK, HSR
LAYOUT, SECTOR II,
HARALAKUNTE, BANGALORE -
560 034.
(Defendants No.1 and 2 Rep. by
M/s K.S. & K.S. Associates,
Advocates)
Date of Institution of the 31.10.2013
suit
Nature of suit Suit for declaration and for
mesne profits.
Date of commencement of 03.11.2015
recording of evidence.
Date on which judgment 17.11.2018
was pronounced.
Total Duration. Years Months Days
05 00 18
XXXVII ACCJ, BANGALORE
3 O.S. No. 7980 / 2013
JUDGMENT
The plaintiffs have filed this suit against the defendants for judgment and decree to declare that they have lien for a total sum of Rs.30,73,256/- on Schedule -B & C properties of suit schedule item No.1 and entitled to recover the same by alienating it and for mesne profit in the rent and deposit amount received by the defendant No.1 and 2 from defendant No.3 or any other tenant in schedule - C flat of suit schedule item No.1 along with costs of the suit.
2. The brief facts of the case of the plaintiffs are as under:
3. The plaintiffs got their second daughter Smt. Sherin @ Sherin Cedrey married to one Sri.J.J.Cedrey Singh (son of the defendant No.1 and 2) on 08.02.2002 at Nagarcoil, Tamil Nadu as per Christian Marriage rites. After the marriage, the daughter of the plaintiffs finally settled with her husband during the year 2006 at Bangalore, where he was employed with M/s Madura Garments Exports, Bangalore. Smt. Sherin Cedrey was a house wife. In the marital life of the daughter of the plaintiffs and son in-law they were blessed with male child named as Joshua Reni Joseph.
4 O.S. No. 7980 / 2013
4. Further it is alleged that, initially, their daughter along with her husband and child were residing in a rented premises in Bangalore. In the year 2009, at the request of their daughter Smt.Sherin @ Sherin Cedrey and son-in-law and realizing that the children were finding it difficult to manage their household expenses, the first plaintiff decided to alienate part of his ancestral property inherited from his father under a WILL, to raise funds for the purchase of a house property for the children in Bangalore. The son-in-law and daughter of the plaintiffs identified the flat bearing No.014 in the ground Floor, Block No.III of " BRUNDAVAN PRESIDENCY '' having a super built-up area of 1157 sq.feet along with covered car parking bay, No.55/11 of Haralakunte Village, Begur Hobli, Bangalore South Taluk measuring an extent of 1 acre 20 guntas of land converted for the residential purpose. The description of the landed property and the flat are described as Schedule Item No.1 property, which was then under construction and available for sale. In April 2009, the plaintiffs transferred Rs 1,00,000/- from their SB account No.609501087750 in the ICICI Bank, Nagercoil to their daughter's account No.037501510155 in ICICI Bank, 5 O.S. No. 7980 / 2013 HSR Layout Branch, Bangalore 560034 towards advance payment for a flat.
5. Further it is alleged that from out of the sale proceeds of first plaintiffs property, the plaintiffs have between June 2009 & September 2009 got credited a total sum of Rs 31,50,000/- in 6 installments ( 4.90 + 0.75 + 5.00 + 1.50 + 9.45 + 9.90 = 31.50 lakhs) to the joint SB Account No.57014916550 in the joint names of plaintiffs daughter Smt. Sherin @ Sherin Cedrey and their son-in-law Sri.J.J.Cedrey Singh, held in the State Bank of Travanore, P.B.Branch, Nagercoil. Out of the above Rs 31.50 lakhs, a total amount of Rs 22,01,000/- was transferred online in 6 installments (0.01+4.50+5.00+5.00+5.00+2.50= 22.01 lakhs) between September and November 2009 to the joint S.B. account No.006708776482 in the State Bank of Travancore, Koramangala Branch, Bangalore in the joint names of plaintiffs daughter and son-in-law which was got opened in july 2009 exclusively to handle funds transferred for the purchase, furnishing, setting up etc of the flat. Further, a total amount of Rs5,45,000/- in 2 installments (3.00+2.45=5.45 lakhs) was also transferred online in October 2009 from the plaintiffs joint 6 O.S. No. 7980 / 2013 S.B.Account No.10843367331 in the State Bank of India, Nagercoil to the above said account in SBT, Bangalore. Thus a total amount of Rs 28,46,000/- (1.00+22.01+5.45 = 28.46 Lakhs) was transferred to the two Bangalore accounts of the children to enable them to purchase the flat, do the interiors and to settle down in flat.
6. Further it is alleged that total agreed sale consideration of the flat was 33,50,000-00 An amount of Rs 23,50,000/- was paid by cheque in 4 installments (1.0+4.10+14.90+3.50 = 23.50 lakhs) which together with an insured Home Loan of Rs 10,00,000/- under joint Home Loan account No.0000006709640733 in the names of the plaintiff's daughter and son-in-law with the SBT, Koramangala Branch, totalling Rs.33,50,000/- comprised the sale price paid to M/S Brundavan Constructions and the sale deed of schedule item No.1 flat was registered jointly in the names of the plaintiff's daughter and son-in-law under a sale deed dated 23-11-2009 and registered as Document No.BMH-1-04679-2009-10, before the sub- Registrar, Bommanahalli, Bangalore. The daughter and son-in- 7 O.S. No. 7980 / 2013 law of the plaintiff's along with their child moved into the flat thereafter and were residing there.
7. Further it is alleged that, in a major fire accident which occurred due to leakage of cooking gas from a cylinder in the flat on 30-11-2009, the daughter of the plaintiff's and the minor child succumbed to the burn injuries on 30-11-2009 at St.John's Medical College Hospital, Bangalore. However, the son-in-law of the plaintiff's Sri.J.J.Cedrey Singh battled for his life with burn injuries at St.John's Medical College Hospital, Bangalore for about a week and died on 7-12-2009. The untimely death of the entire family, who are the successors in line for the plaintiff's as well the defendant No. 1 & 2, was an unbearable tragedy and loss for both the families. After they partly recovered from the grief and shock due to the sad demise of the children, plaintiff's and the defendants together approached the Tahsildar, Agasteeswaram Taluk, Nagercoil with a joint application dated 19-1-2010 for the issue of legal heir certificate. Accordingly, the Tahsildar issued the same on 27-1- 2010 showing plaintiff's as the legal heirs of Smt. Sherin ad the 8 O.S. No. 7980 / 2013 defendant No.1 & 2 as legal heirs of Sri.J.J.Cedrey Singh and the son-in-law of the plaintiff's.
8. Further it is alleged that on 13-9-2011, at the initiative of the defendant Nos 1 & 2 and on mutually agreed terms, a memorandum of agreement (MOA) was entered into between the plaintiff's and the defendants No.1 & 2 regarding the inheritance of the immovable property and amounts in the bank accounts and fixed deposits left behind by the deceased Sri.J.J.Cedrey Singh and Smt.Sherin @ Sherin Cedrey.
9. Further it is alleged that as per item 1 (page 2) of the MOA, both parties agreed that the balance in SB Account No.57014916550 and the 7 fixed deposits held in different modes of holding by the children in the State Bank of Travancore, PB Branch, Nagercoil shall go to plaintiffs absolutely, as all the monies in that account and the FDs had been credited only by the plaintiff's side of the family over the years from 2002. The defendants agreed to issue disclaimer and other documents to facilitate the plaintiff's to claim the monies from the bank. The defendants later issued the required 9 O.S. No. 7980 / 2013 disclaimers, no objection certificates etc to the plaintiffs, who then claimed the amount from the bank and the claim was settled by the bank in January 2012.
10. Further it is alleged that Sri.J.J.Cedrey Singh and Smt.Sherin @ Sherin Cedrey also had a joint SB account with State Bank of Travancore, Koramangala Branch, Bangalore bearing No.6708776482, described herein as Schedule item No.2. It was also agreed as per Item 4 (page 3) of the MOA that the balance amount held in schedule item No.2 bank account be shared equally between plaintiff's and defendant Nos 1 & 2. Plaintiff's in good faith issued disclaimer and other documents to enable the defendant No. 1 & 2 to claim and receive the balance amount held in the SB Account on behalf of both parties. Though the bank processed the claim and credited the balance amount of Rs 1,46,511/- to the account of the defendant No.1 & 2 bearing No.67108309259 at SBT Nagarcoil Branch on 13-3- 2012, the defendants have refused till date to pass on half of that amount to the plaintiffs as agreed in the MOA. 10 O.S. No. 7980 / 2013
11. Further it is stated that regarding schedule item No.1 immovable property , it was agreed by the parties vide item 2 (page 2) of the MOA that the same is allotted to the defendants and a sum of only Rs 30 lakhs ( which is the amount of Rs 28,46,000/- actually transferred/credited by the plaintiff's towards the purchase of schedule item No.1 property, duly round off for convenience as agreed) be taken by the plaintiff's from the consideration receivable on sale of the property jointly by the 4 legal heirs. In good faith and as per the terms of MOA, the plaintiffs issued disclaimer forms and all required documents in favour of the defendants to enable them to claim and collect the sale deed and other documents from the bank pertaining to the schedule item No.1 property held by the bank as collateral security for the housing loan. The defendant Nos. 1 & 2 then lodged necessary claim with the bank and the bank released the original sale/title deed and all documents related to the flat to the defendants December, 2011. Though it was agreed as per item 3 (page 2) of the MoA that the defendants shall issue photocopies of the complete set of documents released by the bank to the plaintiffs, the defendant No.1 & 2 11 O.S. No. 7980 / 2013 have refused to do so and are in sole custody of all original documents relating to the flat.
12. Further it is alleged that though more than 18 months had elapsed since the defendant No.1 & 2 collected the documents from the bank, the defendant No.1 & 2 did not arrange for the 4 legal heirs to jointly sell the schedule item No.1 property and pay Rs 30 lakhs, out of the sale consideration to the plaintiffs, as agreed. Only the defendant No.1 & 2 could arrange for the sale of the flat as all original documents of the flat released from the bank are held by them. While so, plaintiffs got information that the defendant No.1 & 2 were planning to let out the flat without the consent and knowledge of the plaintiffs. Being aggrieved by the willful and long inaction on the part of the defendant and the likelihood that they may let out the schedule property, the plaintiffs got issued a legal notice dated 11-5-2003 calling upon the defendant No.1 & 2 to handover 50% of the schedule Item No.2 amount released from the State Bank of Travancore, Koramangala Branch amounting to Rs 73,256/- and also to take steps to jointly sell the schedule item No.1 i.e., the flat and from the sale consideration so received, to pay Rs 30 lakhs to the 12 O.S. No. 7980 / 2013 plaintiffs as per the MOA. To the legal notice issued by the plaintiffs, the defendants got issued a reply notice dated 28-5- 2013 taking a totally contradictory and surprising stand claiming that by virtue of the daughter of the plaintiffs Smt.Sherin and the minor child, master Joshua Reni Joseph having expired on 30-11-2009, their son Sri.J.J.Cedrey Singh became legal heir of the deceased daughter and grandson of the plaintiffs and on expiry of the son of the defendants, Sri.J.J.Cedrey Singh on 7-12-2009, according to them, it is only the defendants who are the legal heirs of the deceased son and daughter-in-law and grandson. In effect , the defendants claim that the plaintiffs are not legal heirs in the eye of law and have made various other allegations against the plaintiffs.
13. It is further alleged that they got issued legal notice dated 8-6-2013 to the president and the secretary of Brudavan Presidency Apartment Owners Association, who take care of the affairs of the schedule item No.1 flat complex to furnish particulars of the tenant in occupation of the schedule item No.1 flat and accordingly, the Association has forwarded a copy of the rental agreement dated 1-5-2013 with the tenant under 13 O.S. No. 7980 / 2013 defendant No.1, who has claimed to be absolute owner of the schedule No.1 flat while letting it out. It is seen that the flat has been let out to Sri.Ashwani Kumar Sharma on a monthly rent of Rs 17,000/- after collecting a security deposit of Rs 60,000/- under the lease agreement dated 1-5-2013. On receiving the information from the Owners Association regarding the 3rd defendant occupying the flat as a tenant, the plaintiffs got issued a legal notice to defendant No.3 informing plaintiffs right over the schedule property and the fraud played by the defendant No.1 by leasing out the flat claiming to be the absolute owner and calling upon the defendant No.3 to vacate the flat by surrendering the lease. On 2-7-2013 the defendant No.1 & 2 got issued legal notice threatening the plaintiffs to initiate legal recourse, which is suitably replied by the plaintiffs vide reply legal notice dated 12-7-2013. Plaintiff has came to know from the office bearers of the association that the defendant No.1 have brought and shown may intended purchasers the schedule item No.1 flat but so far he could not succeed in alienating the property but is making hectic effort for the same. 14 O.S. No. 7980 / 2013
14. Further it is alleged that they have made investment of Rs. 28,46,000/- by parting away with the sale consideration of the ancestral property of the plaintiff No.1 towards the purchase of the flat described as schedule item No.1 in the joint name of their deceased daughter and son-in-law and they are entitled for reimbursement of money of Rs.30 lakhs agreed as per the Memorandum of Agreement between them and defendants No.1 & 2 by selling the flat on the prevailing market price.
15. Further it is alleged that the 1st defendant has processed the claim and bank has credited the balance amount of Rs.1,46,511/- to the account of defendant No.1 & 2 on 13-3- 2012 and they are entitled for the 50% of the amount described at Schedule Item No.2.
16. Further it is alleged that since the relief of mesne profit is sought the defendant No3 is a necessary party to this suit. Since, the defendants by fraudulently releasing the original title deeds and revenue records of the schedule item No.1 immovable property instead of jointly selling the property and settle the amount payable to the plaintiffs under MoA have let out the 15 O.S. No. 7980 / 2013 premises by receiving the deposit amounts and monthly rents and the plaintiffs are entitled for the relief of means profit on the rent and other amount received by the defendant No.1 & 2 from the schedule item No.1 property.
17. According to the plaintiffs, the cause of action for the suit arose on 23.11.2009 when the daughter Smt. Sherin and their son-in-law Sri. J.J. Cedrey Singh purchased schedule item No.1 flat with the funds of plaintiffs on 30.11.2009 and 07.12.2009, when the daughter, grandson and son-in-law of the plaintiffs died within the jurisdiction of this Court on 27.01.2010 the Tahsildar Agastheeshwaram has issued the legal heirs certificate and subsequently when the plaintiffs and defendant No.1 and 2 entered into a Memorandum of Agreement dated 13.09.2011 regarding division of the assets left behind by the daughter, son- in-law of the plaintiffs and subsequently on 01.05.2013 defendant No.1 has illegally inducted defendant No.3 as a tenant in schedule item No.1 and refused to perform the obligations under the Memorandum of Agreement compelling the plaintiffs to issue legal notice dated 11.05.2013.
16 O.S. No. 7980 / 2013
Mainly among these grounds, it is prayed to decree the suit as prayed.
18. After the service of suit summons, the defendant No.1, and 2 entered appearance through their counsel and filed their written statement jointly.
19. In the written statement the defendants No.1 and 2 have admitted the relationship of the parties as set out in the plaint. They also admitted that in a major fire accident occurred due to leakage of cooking gas on 30.11.2009 the plaintiffs daughter and her son succumbed to the injuries on 30.11.2009 and subsequently, their son J.J. Cedrey Singh was also succumbed to the injuries on 07.12.2009. Except admitting the said facts the defendants No.1 and 2 have denied the rest of the averments of the plaint as false and untenable and called upon the plaintiffs for strict proof of the same.
20. In the written statement the defendants No.1 and 2 have contended that their son J.J. Cedrey Singh was a Textile Engineer and was employed at M/s Madura Garments Exports, 17 O.S. No. 7980 / 2013 at Bangalore and he was in the good job and earning Rs. 40 to 60 thousand per month. Apart from that he is the only son to them and that they also Government servants in which the defendant No.1 is retired College Professor and defendant No.2 is a retired Head Mistresses, Government High Secondary School and both are earning a sum of Rs. 65,000/- and Rs.1 lakhs as their pension and they are also having sufficient savings in their account and there was no difficult for their son to manage the house hold expenses as averred in para No.2 of the plaint. Further it is contended that their son never aspired any money from the plaintiffs. At any point of time, either they or their deceased son J.J. Cedrey Singh have no requirement for demanding money from the plaintiffs.
21. Further it is contended that their savings and savings of their son are deposited in the said accounts. Money deposits in the Bank are not that of the plaintiffs. Further it is contended that their son J.J. Cendrey Singh has availed loan from the Bank and purchased the property in the joint names of himself and his wife. The Bank has also given loan on the basis of the repayment capacity of their son. Thereby it is too much on the 18 O.S. No. 7980 / 2013 part of the plaintiffs to say that out of the total sale consideration of Rs. 33,50,000/- they have paid a sum of Rs. 23,50,000/-, which is absolutely false.
22. Further it is contended that, in fact, after the demise of their son, the defendant No.1 approached the Tahsildar earlier on 15.01.2010 to issue legal heir certificate. However, due to the intervention and also influence of the plaintiffs they can able to manage to take the legal heir certificate dated 27.01.2010 disclosing that the plaintiffs are the legal heirs of Smt. Sherin Cedrey and the defendants No.1 and 2 are the legal heirs of J.J. Cedrey singh. Further it is stated that the Tahsildar, Agathreeswaran Taluk, Nagercoil had issued fresh legal heir certificate dated 17.10.2013 stating that the defendants No.1 and 2 are the legal heirs of deceased J.J. Cedrey Singh, thereby the legal heir certificate issued by the Tahsildar dated 27.01.2010 came to be revoked and fresh legal heir certificate has been issued on 17.10.2013.
23. Further it is contended that the plaintiffs dishonestly got created the documents and take away the money in the FDs 19 O.S. No. 7980 / 2013 after realizing the said mischief committed by them they have approached the concerned authority to reject the disclaimer and NOCs as they were submitted by the plaintiffs.
24. Further it is contended that amount of Rs.1,46,151/- that was credited to the account of defendants No.1 and 2 at SBT, Nagercoil Branch by the SBT, Koramangala Branch was the hard earned money of J.J. Cedrey Singh by way of his salary and savings for which the plaintiffs have no right to claim. Further it is contended that they lodged necessary claim with the bank and the bank released the original sale / title deed and all the documents related to the flat to them in December 2011.
25. Further it is contended that MoA as alleged by the plaintiffs is a fabricated document and they are not entitled on the basis of the MoA as the said document is a disputed document and the defendants No.1 and 2 have not acted upon the same. Further it is contended that they being the legal heirs of J.J. Cedrey Singh and his family they are entitled to lease the property of their own choice. They have leased the premises for 20 O.S. No. 7980 / 2013 defendant No.3 as a matter of right, for which the plaintiffs have no right to question the same.
26. In the written statement the defendants No.1 and 2 have contended that as per the provisions of the Indian Succession Act, the Class-I heirs will be the father and mother and not the father in-law and mother in-law. Thereby the claim of the plaintiffs is not maintainable in the present suit.
27. Further it is contended that the plaintiffs cannot claim a lien over the property of the deceased other than the legal heirship. For the alleged claim of lien over the property of the deceased, the plaintiffs have not produced any document to the effect that there was any contract / any undertakings / any promises or any other document in that nature to lien over the property of the deceased.
Mainly among these grounds, it is prayed to dismiss the suit with exemplary costs.
21 O.S. No. 7980 / 2013
28. On the basis of the above pleadings of the parties, the then Presiding Officer of this court has framed the following issues and additional issue.
ISSUES
1. Whether the plaintiffs prove that, they have lien for a total sum of Rs.30,73,256/- on Schedule 'B' and 'C' properties of the suit schedule Item No.1 and entitled to recover the same by alienating it?
2. Whether the Defendant No.1 and 2 proves that claim of the plaintiffs is not maintainable as contended in Para 21 of the Written statement?
3. Whether Defendants No.1 and 2 proves that Defendant No.3 is not at all necessary party to the present case?
4. What order or decree?
ADDITIONAL ISSUE
1. Whether the plaintiff proves that they are entitled for the mesne profit in the rent and deposit amount received by the defendant No.1 and 2 from the defendant No.3 or any other tenant in suit schedule itemNo.1 and if so how much amount?
29. At the time of evidence, plaintiff No.1 examined himself as PW 1 and on their behalf one witness by name Sri. P. Selvaraj, Advocate has been examined as PW 2. They got marked 42 documents as Ex.P1 to P42 and closed their side evidence. On the other hand, the defendant No.1 examined himself as 22 O.S. No. 7980 / 2013 DW 1 and got marked as many as 11 documents as Ex.D1 to D11 and closed their side evidence. Then the case posted for arguments.
30. Heard the arguments.
31. My findings on the above issues are as under:
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : In the Negative
Addl. issue No.1: In the Negative.
Issue No.4 : As per final order for the following.
REASONS
32. ISSUE No.1 & 2: As these two issues are inter-connected
with each other, hence, I have taken up these two issues together for common discussion in order to avoid repetition of facts.
33. On perusal of the pleadings of the parties, it is seen that the following facts are admitted facts between the parties. The plaintiffs and defendants are Christian by religion. The second daughter of plaintiffs Smt. Sherin @ Sherin Cedrey married to one Sri. J.J.Cedrey Singh who is none-other than the son of defendants No.1 and 2. Their marriage was took place on 08.02.2002 at Nagarcoil, Tamil Nadu as per Christian Marriage 23 O.S. No. 7980 / 2013 rites. After the marriage, the daughter of the plaintiffs finally settled with her husband during the year 2006 at Bangalore. The said J.J. Cedrey Singh was employed with M/s Madura Garments Exports, Bangalore. Smt. Sherin Cedrey was a house wife. In the marital life of the daughter of the plaintiffs and son in-law they were blessed with male child named as Joshua Reni Josepsh. The said Smt. Sherin @ Sherin Cedrey and J.J.Cedrey Singh have joint accounts in State Bank of Tranvancore, P.B. Branch, Nagercoil and also at State Bank of Tranvancore, Koramangala Branch, Bangalore. In a major fire accident which occurred due to leakage of cooking gas from a cylinder in the flat on 30-11-2009, the daughter of plaintiffs and minor child succumbed to the burn injuries and died on 30-11-2009 at St.John's Medical College Hospital, Bangalore. However, the son-in-law of the plaintiffs Sri.J.J.Cedrey Singh battled for his life with burn injuries at St.John's Medical College Hospital, Bangalore and died on 07-12-2009. The above facts are the admitted facts between the parties.
34. According to the plaintiffs they made investments of Rs. 28,46,000/- by parting away with the sale consideration on the 24 O.S. No. 7980 / 2013 ancestral property of plaintiff No.1 towards purchase of Flat (schedule item No.1) in the joint name of their deceased daughter and son-in-law and they are entitled for reimbursement of money of Rs. 30 lakhs as agreed as per the memorandum of agreement between them and the defendants No.1 and 2 by selling the flat on the prevailing market price.
35. But the main defence of the defendants is that their savings and the savings of their son are deposited in the said account. The money deposited in the Bank are not of the plaintiffs. Further it is contended that the amounts which was at S.B. Account of SBT was hard-earned money of J.J. Cedrey Singh by way of his salary and savings for which the plaintiffs have no right to claim.
36. Therefore, in view of the above rival contention of the parties, now the court has to find out whether the plaintiffs actually invested Rs.28,46,000/- to the joint account of deceased Sherin Cedrey and J.J. Cedrey for purchase of the flat by them at Bangalore.
25 O.S. No. 7980 / 2013
37. During the course of arguments, the learned counsel for the plaintiffs would submit that the plaintiffs have sold the properties stood in the name of 2nd plaintiff as mentioned in Ex.P36 and P37 sale deeds and after selling the said properties they transferred / deposited the amounts in the joint account of their daughter and son-in-law in order to purchase the flat at Bangalore by them. Ex.P36 and P37 are the copies of the registered sale deeds dated 17.06.2009 and 06.07.2009. Further it is argued that as per the contents of Ex.P18 to P24 counter- folios of SBT, Nagarcoil, Indian Bank, Nagarcoil and Bank of India, Nagarcoil, the plaintiffs have transferred /deposited the amount mentioned in the said counter folios in the joint account of their daughter and son-in-law and the contents of Ex.P25 to P35 copies of the account extracts also shows that the plaintiffs have transferred / deposited the said amount in the joint account of their daughter and son-in-law and hence, the plaintiffs are entitled for the amount of R.30,73,256/- from the defendants after selling the schedule - B & C properties.
38. On the other hand, during the course of arguments, the learned counsel for the defendants would submit that as per 26 O.S. No. 7980 / 2013 Ex.P36 and P37 copies of sale deeds the 2nd plaintiff / vendor alleged to have sold the said properties for sale consideration of Rs.4,99,500/- and Rs.4,68,000/- respectively and as per the contents of the said documents she received the said amount in cash and therefore, the plaintiffs have not shown or proved the fact that they have transferred the alleged amount to the joint account of the deceased persons. Further it is argued that, the plaintiffs have not produced the documents to show that the amount alleged to have transferred to the joint account of the deceased persons is the amount belong to them. According to the learned counsel for the defendants, the plaintiffs have failed to prove the fact that they have sold their properties and transferred / deposited the sale consideration amount and also the alleged total amount of Rs.28,46,000/- in the joint account of deceased persons as they contended in the plaint and therefore, they are not entitled for reimbursement of money of Rs.30,73,256/- as they stated in the plaint.
39. At the time of evidence, the 1st plaintiff (PW1) has got marked the certified copies of two registered sale deeds dated 17.06.2009 and 06.07.2009 as Ex.P36 and P37. Ex.P36(a) an 27 O.S. No. 7980 / 2013 P37(a) are the translated version from Tamil to English language. The contents of Ex.P36 and P37 copies of the sale deeds shows that the vendor of the properties covered under the said documents i.e. present 2nd plaintiff Smt. Sheila Arnold has sold the said properties to Smt.Vino Jancy and Sri. C. Prema Stephen respectively for a sale consideration of Rs.4,99,500/- and Rs.4,68,000/- respectively. As per the contents of these two documents, the 2nd plaintiff - vendor had received the said sale consideration amount by cash. It is seen from the records that there is no clear cut or direct evidence is found on record on behalf of plaintiffs side in order to show that after receipt of the sale consideration amount of Rs.4,99,500/- and Rs. 4,68,000/- after selling away the properties by the 2nd plaintiffs through Ex.P36 and P37, the very same amount were directly transferred / deposited in the joint account of the deceased persons.
40. It is seen from the records that, before filing the suit, the present plaintiff got issued a legal notice dated 11.05.2013 (Ex.P8) to the present defendants calling upon them to pay half of the amount of Rs.73,256/- received by them from SBT, 28 O.S. No. 7980 / 2013 Koramangala Branch together with interest at 18% p.a. from 13.03.2012 and further they called upon them to take necessary steps so that the Bangalore Flat No.14 be sold and thereafter, they will be entitled to amount of Rs.30 lakhs plus interest at 18% p.a. from the date of agreement dated 13.09.2011. As per the contents of Rs.P9 and P10 postal acknowledgements, the said notice was served upon the present defendant No.1. In the cross examination the defendant No.1 has admitted with respect to receipt of Ex.P8 notice. Thereafter, the present defendants have issued reply notice to the Ex.P8 notice and the said reply notice is Ex.P11. The said reply notice was sent to the plaintiffs through their counsel by name Sri. Navarathnam, Advocate, Nagercoil. In Ex.P11 reply notice it has been mentioned that "the averments stated in para 3 is denied by my client, your client never financed Rs. 30,00,000/- to my client's son and to daughter in law as mentioned in your notice. Your client financially supported only a sum of Rs.19,35,000/- to purchase the flat and to the welfare of the family necessities to my client's son and your client's daughter Sherin as detailed below. Your client Mr. Sukumar issued a cheque No. 65725 dated 17.06.2009 for Rs.4,90,000/- and transfer of fund to my clients 29 O.S. No. 7980 / 2013 son account Rs.4,55,000/- in Indian Bank Branch, at Nagercoil thereafter on 29.06.2009 and by depositing cash Rs.4,90,000/- and Rs.5,00,000/- on 17.06.2009 and 04.07.2009 respectively in the Bank of India, Nagercoil Branch".
41. In Ex.P11 reply notice itself the defendants have clearly admitted that the plaintiffs have financed / supported only a sum of Rs. 19,35,000/- to purchase the flat and to the welfare of the family necessities of the deceased Sherin Cedrey and J.J. Cedrey. Apart from this, if we compare the dates and amounts as mentioned in para No.3 of Ex.P11 reply notice with that of Ex.P21 to P24 counter folios of Bank of India Nagercoil it clearly shows that the description of the four amounts and dates as mentioned in Ex.P11 reply notice exactly tallied with the contents of Ex.P21 o P24 counter folios of the Bank receipts. Therefore, from the above admission of the defendants in Ex.P11 reply notice itself it is quite clear that the plaintiffs have remitted / transferred a sum of Rs. 4,90,000 (Ex.P21) Rs. 4,55,000/- (Ex.P22, Rs.4,90,000/- (Ex.P23) and Rs. 5 lakhs (Ex.P24) totally amounting to Rs.19,35,000/- to the account of the son of the defendant No.1 i.e., J.J. Cedrey. Therefore, in 30 O.S. No. 7980 / 2013 view of the above facts and circumstances of the case, the plaintiffs have proved the fact that they have remitted the said total amount of Rs.19,35,000/- to the account of their son in- law under Ex.P21 to P24.
42. In the cross examination DW 1 has admitted that after receiving Ex.P8 legal notice he contacted Sri. K. Navarathnam in order to prepare and send the reply notice and he gave instructions to him to issue reply notice, but as per his instructions he has not sent the reply to the notice Ex.P11). Further he has stated that after filling of the suit and when he came to know the contents of Ex.P11 reply notice, he has not taken any legal action against Sri. K. Navarathnam as he has not followed his instructions while issuing reply notice. If at all the said K. Navarathnam Advocate without following the instructions of defendant No.1 had issued such reply notice (Ex.P11), after knowing the same, this defendant No.1 would have taken legal steps / proper steps against him for issuing such reply notice without his instructions. But the defendant No.1 has not taken any proper steps against the said K. Navarathnam. Therefore, the above contention of the defendants 31 O.S. No. 7980 / 2013 cannot be taken into consideration as the clear admission in the reply notice itself shows that the plaintiffs have financially supported a sum of Rs.19,35,000/- to the deceased Sherin Cedrey and J.J. Cedrey Singh for purchase of flat and to the welfare of the family necessities.
43. According to the plaintiffs, as per Ex.P18 to P20 counter folios of State Bank of Travancore, Nagercoil they have remitted a sum of Rs.4,90,000/-, Rs.75,000/- and Rs. 5 lakhs to the account of their daughter Sherin Cedrey in order to purchase the flat at Bangalore. But the defendants have denied the said fact. It is seen from the record that, at the time of evidence, the plaintiffs have got marked the copy of account extract of the Bank account of the 1st plaintiff and joint account of his daughter and son in-law and another account of their son - in- law and the said documents are marked as Ex.P26 to P34.
44. If we compare Ex.P18 counter folio with that of Ex.p29 joint account statement of the deceased Sherin Cedrey and J.J. Cedrey Singh, it is seen that, a sum of Rs. 4,90,000/- which was remitted under Ex.P18 counter folio dated 16.06.2009 was 32 O.S. No. 7980 / 2013 credited to the joint account of the deceased persons Sherin Cedrey and J.J. Cedrey Singh on 17.06.2009. The same has been mentioned inEx.P29 account extract. So also an amount of Rs. 75,000/- which is shown in the Ex.P19 counter to the dated 18.06.2009 was also credited to the account of deceased persons Sherin Cedrey and J.J. Cedrey Singh as shown in Ex.p29 account extract on 18.06.2009. So also an amount of Rs.5 lakhs which has been shown in Ex.P20 counter folio dated 29.06.2009 was also credited to the joint account of deceased persons Sherin Cedrey and J.J. Cedrey Singh as shown in Ex.P29 account extract on 30.06.2009. These counter folios are in the custody of plaintiffs and they have produced these documents along with Ex.P29, copy of the account extract and these documents collectively shows that the amount as mentioned in Ex.P18 to 20 counter folios were remitted / transferred into the joint account of deceased persons Sherin Cedrey and J.J. Cedrey Singh as shown in Ex.P29 documents. Even though the learned counsel for the defendants have cross examined PW 1 in this regard, but there is no worth has been elicited from his evidence except some minor discrepancies. 33 O.S. No. 7980 / 2013
45. Even though in the written statement the defendants have contended that the savings of them and savings of their son are deposited in the said account, the money deposited in the bank are not of the plaintiffs, but in order to prove the alleged contention that whatever the above said amount which is present in the separate account of deceased J.J. Cedrey Singh and joint account of deceased Sherin Cedrey and J.J. Cedrey Singh is exclusively belong to the deceased J.J. Cedrey Singh and the amount that was transferred or credited by them (defendants), the defendants have not at all placed any material evidence before the Court. In the cross examination at page No. 29, the defendant No.1 (DW 1) has admitted that he has not produced any documents to show that he invested the amount for purchasing schedule item No.1 property. This itself clearly shows that the defendants have not at all invested any amount for purchasing the schedule item No.1 property by their son and daughter in-law. Therefore, in view of the above facts and circumstances of the case, it can be stated that by producing Ex.P18 to P20 and 29 documents the plaintiffs have also proved the fact that they have remitted / credited a sum of Rs. 4,90,000/-, Rs. 75,000/- and Rs.5 lakhs to the joint account of 34 O.S. No. 7980 / 2013 the deceased persons. Even though the plaintiffs have contended that they have also deposited a sum of Rs.1,50,000/- by cash on 07.07.2009 as shown in Ex.P29 account extract, but except the entry in the said document, there is no proof in order to show that the said amount was actually remitted by the plaintiffs to the joint account of the deceased persons Sherin Cedrey and J.J. Cedrey Singh. The plaintiffs have not produced any other documents except the entry in Ex.P29 document in this regard. Therefore, it cannot be said that the plaintiffs have remitted such amount of Rs.1,50,000/- on 07.07.2009 to the joint account of deceased persons Sherin Cedrey and J.J. Cedrey Singh as shown in Ex.P29 document.
46. If we calculate the total amount that was credited / remitted by the plaintiffs into the account of deceased J.J. Cedrey Singh as shown in Ex.P18 to P24 counter folios and also amount that was credited by the plaintiffs to the joint account of deceased Sherin Cedrey and J.J. Cedrey Singh as shown in Ex.P18 to P20 counter folios as mentioned in Ex.p29 copy of account extract, it shows that the plaintiffs have totally remitted / transferred a sum of Rs.30 lakhs into the account of deceased 35 O.S. No. 7980 / 2013 J.J. Cedrey Singh and joint account of their daughter and son in-law as per the entries in Ex.P29 document. Therefore, in view of all these reasons it is stated that the plaintiffs have proved the fact that they have remitted / transferred a sum of Rs.30 lakhs into the account of J.J. Cedrey Singh and joint account of deceased persons Sherin Cedrey and J.J. Cedrey Singh for purchase of flat and for family necessities of the deceased Sherin Cedrey and J.J. Cedrey Singh.
47. In the plaint the plaintiffs have contended that on 13-9- 2011, at the initiative of the defendant Nos 1 & 2 and on mutually agreed terms, a memorandum of agreement (MOA) was entered into between them and defendants No.1 & 2 regarding inheritance of immovable property and amounts in the bank accounts and fixed deposits left behind by deceased Sri.J.J.Cedrey Singh and Smt.Sherin @ Sherin Cedrey. As per item No.1 of the MoU both parties agreed that the balance in SB Account No.57014916550 and 7 fixed deposits held in different modes of holding by the children in the State Bank of Travancore, PB Branch, Nagercoil shall go to plaintiffs absolutely, as all the monies in that account and the FDs had 36 O.S. No. 7980 / 2013 been credited only by the plaintiff's side of the family over the years from 2002. The defendants agreed to issue disclaimer and other documents to facilitate the plaintiff's to claim the monies from the bank. The defendants later issued the required disclaimers, no objection certificates etc to the plaintiffs, who then claimed the amount from the bank and the claim was settled by the bank in January 2012. It is further contended that Sri.J.J.Cedrey Singh and Smt.Sherin @ Sherin Cedrey also had a joint SB account with State Bank of Travancore, Koramangala Branch, Bangalore bearing No.6708776482, described herein as Schedule item No.2. It was also agreed as per Item 4 (page 3) of the MOA that the balance amount held in schedule item No.2 bank account be shared equally between plaintiff's and defendant Nos 1 & 2. Plaintiff's in good faith issued disclaimer and other documents to enable the defendant No. 1 & 2 to claim and receive the balance amount held in the SB Account on behalf of both parties. Though the bank processed the claim and credited the balance amount of Rs 1,46,511/- to the account of defendant No.1 & 2 bearing No.67108309259 at SBT Nagarcoil Branch on 13-3-2012, the defendants have refused till date to pass on half of that amount 37 O.S. No. 7980 / 2013 to the plaintiffs as agreed in the MOA. Further it is contended that, regarding schedule item No.1 immovable property , it was agreed by the parties vide item 2 (page 2) of the MOA that the same is allotted to the defendants and a sum of Rs 30 lakhs (which is the amount of Rs 28,46,000/- actually transferred/credited by the plaintiff's towards the purchase of schedule item No.1 property, duly round off for convenience as agreed) be taken by the plaintiff's from the consideration receivable on sale of the property jointly by the 4 legal heirs. In good faith and as per the terms of MOA, the plaintiffs issued disclaimer forms and all required documents in favour of the defendants to enable them to claim and collect the sale deed and other documents from the bank pertaining to the schedule item No.1 property held by the bank as collateral security for the housing loan. The defendant Nos. 1 & 2 then lodged necessary claim with the bank and the bank released the original sale/title deed and all documents related to the flat to the defendants December, 2011. Though it was agreed as per item 3 (page 2) of the MOA that the defendants shall issue photocopies of the complete set of documents released by the bank to the plaintiffs, the defendant No.1 & 2 have refused to do 38 O.S. No. 7980 / 2013 so and are in sole custody of all original documents relating to the flat. According to the plaintiffs, they are entitled for a declaration that they have the lien for total sum of Rs.30,73,256/- on schedule item No.1 and they are entitled to receive the said sum.
48. Per contra, in the written statement, the defendants No.1 and 2 have contended that, the alleged MoA is a fabricated document. The cliam of the plaintiffs as per the MoA are not entitled and the said MoA itself is a disputed document, due to which the defendants have not acted upon the same.
49. At the time of arguments also the learned counsel for the parties submitted their arguments with respect to the above respective contentions of the parties.
50. At the time of evidence, the plaintiffs have produced and got marked the said MoU dated 13.09.2011 as Ex.P6. As per the contents of Ex.P6 MoA, the plaintiffs and defendants said to have entered into the said MoA on 13.09.2011 and the clauses mentioned in the said MoA reads as under.
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"1. The Savings Bank Account and seven fixed deposits in the names of J.J. Cedrey Singh and Smt. Sherin Cedrey in various mode of holding in the State Bank of Travancore, P.S. Branch, Nagercoil have to be allotted to the 'B'- party and the 'A' are having no right or claim over that under any pretext.
2. The Flat No. 014, with one car parking area in Block No. III of Brundavan Presidency Apartments, 26th A Cross, Near IBP Petrol Bank, HSR Layout, 2nd Sector, Haralakunte, Begur Hobli, Bangalore - 560 034 jointly registered vide sale deed No. 4679/2009-2010 dated 23.11.2009 registered at Bangalore in the names of J.J. Cedrey Singh and Smt. Sherin Cedrey is allotted to the 'A' party and since the 'B' party paid Rs.30.00 lakhs (Thirty lakhs) for the purchase of the Flat, this amount is to be returned to the 'B' party on sale of the property.
3. 'A; and 'B' parties hereby agreed to execute disclaimer forms for the respective claims before the Bank and for the sale of the Bangalore flat and also 'B' party has to sign the necessary documents for the release of the title deeds available in the State Bank of Travancore, Koramangala branch in favour of the 'A' party. On receipt of the documents, party A shall furnish photocopies of the complete set of documents to party B.
4. It is agreed that parties A & B shall jointly take steps to claim the balance amount in J.J. Cedrey Singh and Smt. Sherin Cedrey joint savings Bank Account in State Bank of Travancore, Koramangala and share the amount equally between them on realization from the Bank.
5. 'A' and 'B' parties further agreed to execute any disclaimer forms befoe the Banks and post offices, in which J.J. Cedrey Singh and Smt. Sherin Cedrey had Bank accounts to facilitate the withdrawal of the amounts if any by the 'A' party".
51. In the oral evidence plaintiff No.1 (PW1) has reiterated the above main averments of the plaint regarding the alleged MoA 40 O.S. No. 7980 / 2013 entered into between them and defendants and the terms and conditions which are enumerated in the said document and agreeable by them as per the said conditions.
52. At the time of evidence, plaintiffs have examined a witness by name P. Selvaraj, Advocate, Nagercoil as PW 2. In the in- chief evidence, the PW 2 has stated that, the A-party of the MoA i.e. defendants approached him and on enquiry it was disclosed that there was a dispute between them and B-party (plaintiffs) in respect of the property situated at Bangalore along with two Bank transactions one at Nagercoil and another at Bangalore. The defendant No.1 requested him for intervention to resolve the dispute to arrive for settlement. At his request he and Joseph Dharmasingh had come to the house of the plaintiffs. After deliberations though the B-party was not interested for arriving any settlement, however, at a later point of time he prevailed over the partiers to arrive for a settlement. Further he has stated that, it was decided that the properties situated at Bangalore should go to A- party. The properties situated at Bangalore towards a sum of Rs. 30 lakhs should be given to B-party by A- party. It was further decided as far as Bank account is 41 O.S. No. 7980 / 2013 concerned it should be divided between A party and B party. Based on these deliberations, he prepared a draft deed which was served to A and B parties for verification. A and B parties agreed the terms of the deed. Based on these deliberations he purchased two stamp papers, one in the name of A party No.1 and another in the name of B party No.1 along with two green sheets also. It was typed. Then the deed was taken to the house of B parties on 13.09.2011. At that time, A and B parties were present in the house of B parties. Typed papers were read over by A party and B party. In his presence A parties and B parties put signatures in two sets on papers. Then, he put his signature to the deed as witness No.1. At the time of evidence this witness has identified his signature in Ex.P6 and the same was marked as Ex.P6(a). He has also identified the signature of another witness and the same was marked as Ex.P6(b). He has also identified the signatures of A & B parties in Ex.P6. Even though the learned counsel for the defendants has cross examined this witness, but there is no worth has been eliciged from this witness to impeach his veracity.
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53. Even though the defendants have denied the alleged MoA entered into between them and plaintiffs and according to them the said document is a crated document and not acted upon between them, but in the cross examination at page No.23, the defendant No.1 / DW 1 has admitted in Ex.P6 MoA his signature and the signature of his wife and the signature of plaintiffs is present on each page. He has also admitted that PW 2 Sri. P. Selvaraj Advocate is his student at SCOT Christian College, Nagercoil. DW 1 has also admitted that the said P. Selvaraj being his earlier student and an advocate he contacted him to prepare Ex.P6 MoA. The defendant No.1 has also admitted that the said P. Selvaraj Advocate also put his signature as one of the witnesses in Ex.P6 document. He has also admitted that he affixed signature in Ex.P6 document in the house of P.Sukumar. But in the cross examination DW 1 has stated that by force such memorandum was prepared. Further he volunteers that out of fear he put his signature. He has also stated that he has not given any complaint to the police or challenged by saying that this Ex.P6 was created fraudulently by taking his signature.
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54. The above evidence of DW 1 apparently shows that such Ex.P7 MoA was entered into between the plaintiffs and defendants in the house of plaintiffs and the said document was prepared by PW 2 P. Selvaraj, Advocate and both the parties put their signature to the said document and thereafter PW 2 also put his signature as one of the witnesses.
55. Even though the defendant No.1 has admitted in his cross examination regarding such MoA entered into between them, but according to him by force such memorandum was prepared and out of fear he put his signature. If at all by force such memorandum was prepared and out of fear he put his signature as stated in his cross examination, he would have lodged a complaint to the police or challenged by saying that such Ex.P6 was created fraudulently by taking his signature. But the defendants have not at all taken any proper steps in this regard against the plaintiffs by saying that Ex.P6 MoA was created fraudulently by taking his signature by force.
56. In the cross examination DW 1 has admitted that he was working as Professor in SCOT Christian College, Nagercoil, His 44 O.S. No. 7980 / 2013 wife was also employed and well versed in English. The above evidence of DW 1 shows that both the defendants are qualified persons and they are well versed with English language and they are not village rustic persons. Therefore, the contention of the defendants that by force he put his signature to Ex.P6 MoA and out of fear he put his signature to the said document, as he stated in his cross examination as stated above cannot be accepted. Therefore, from the above evidence of PW 1 and 2 and DW 1 and by producing Ex.P6 document, the plaintiffs have proved the fact that Ex.P6 MoA dated 13.09.2011 was entered into between them and defendants with regard to settlement of claim between them with respect to the terms and conditions as mentioned in the said document.
57. In order to know whether Ex.P6 MoA dated 13.09.2011 was acted upon between the parties, in the cross examination, the defendant No.1 - DW 1 has stated that it is true that after executing the said indemnity bond and surety bond to the SBT Koramangala he got released Ex.D1 and D2 from the said Bank. It is true that Ex.P7 is the letter given by SBT Koramangala branch addressed to him and a copy of the letter was sent to the 45 O.S. No. 7980 / 2013 plaintiff Sri. Sukumar. It is true that as per the contents of Ex.P7 letter an amount of Rs. 1,46,511/- was credited to his account which is mentioned in para No.2 of the Ex.P7.
58. At the same time, if we peruse the clause 4 as present in Ex.P6 - MoA it shows that it is agreed that parties A & B shall jointly take steps to claim the balance amount in J.J. Cedrey Singh and Smt. Sherin Cedrey joint savings Bank Account in State Bank of Travancore, Koramangala and share the amount equally between them on realization from the Bank. The above said amount of Rs. 1,46,511/- which was credited to the account of DW 1 as he stated in his cross examination that amount which is covered under Clause 4 of this Ex.P6 document. That apart, in the cross examination at page No.27 DW 1 has also admitted that acting on the Ex.P6 document after giving disclaimer by the plaintiff Sukumar the bank has released the title deeds of the schedule property and also transferred the balance amount present in the joint account to his account as per Ex.P7 document. Further he has admitted at page No.28 that after releasing the title deeds from the bank i.e. SBT Koramangala Branch, the said Bank released / credited 46 O.S. No. 7980 / 2013 an amount of Rs.1,46,511/- to his account on 13.03.2012. The clause 3 of the Ex.P6 MoA shows that both the parties agreed to execute disclaimer forms for the respective claims before the Bank and for the sale of the Bangalore flat and also 'B' party has to sign the necessary documents for the release of the title deeds available in the State Bank of Travancore, Koramangala branch in favour of the 'A' party. Therefore, the above evidence of DW 1 apparently shows that Ex.P6 document was acted upon between the plaintiffs and defendants and after giving disclaimer by the plaintiffs the concerned Bank has released the title deeds of the schedule property and also transferred the balance amount of Rs. 1,46,511/- to the account of defendant No.1 on 13.03.2012. Therefore, in view of the above facts and circumstances of the case and for the reasons as stated supra, it is stated that, Ex.P6 document was entered into between the plaintiffs and defendants and this document was acted upon between the parties and therefore, the clauses which are mentioned in this document are binding on the plaintiffs and defendants.
59. When the argument of both side was concluded, at that juncture, the learned counsel for the defendants has produced a 47 O.S. No. 7980 / 2013 memo with Xerox copy of the provision of Section 17 of the Registration Act, 1908. According to the learned counsel for the defendants Ex.P6 MoA is an unregistered document and the said document ought to have been registered and as this document was not registered the same cannot be looked into by this court.
60. It is seen from the record that Ex.P6 memorandum of agreement dated 13.09.2011 is an unregistered document and the same was entered into between the plaintiffs and defendants not with respect to their absolute properties, but with respect to immovable and movable properties belonging to the deceased persons who are none-other than the daughter and son-in-law of plaintiffs and the son and daughter in-law of the defendants respectively. It is seen from the records that the defendants have not taken this specific contention in their written statement and no issue has been raised by this court with regard to the same. Only at the fag end of the case, such contention was raised by the counsel for the defendants.
61. This court has already held that Ex.P6 MoA dated 13.09.2011 was entered into between the plaintiffs and 48 O.S. No. 7980 / 2013 defendants and both the parties put their signatures to the said document and this document was acted upon by both the parties. When such document was entered into between the parties voluntarily in order to settle their dispute amicably by incorporating certain clauses in such document, the parties to such document are abide by the clauses mentioned in the said document and they cannot turn round and say that such document was not acted upon. As per the contents of this document both the plaintiffs and defendants are beneficiaries in respect of the movable and immovable properties of the deceased persons. Therefore, merely because Ex.P6 MoA was not registered, on that score itself this document cannot be thrown out, as this document was entered into between the plaintiffs and defendants and this document was acted upon by both the parties, The court has to give value to such document as this document was entered into between the parties voluntarily in order to put an end to their dispute. Therefore, the above contention of the defendants has no force at all.
62. In the cross examination defendant No.1 (DW 1) has admitted that as the matter with regard to the jewellery and 49 O.S. No. 7980 / 2013 locker of my daughter in-law was already settled between us and plaintiffs, the same is not mentioned in Ex.P6 MoA. Therefore, in view of the above evidence of DW 1, it can be stated that there is no much controversy between the parties with respect to the jewellery and locker of daughter of the plaintiffs which were taken by the plaintiffs in view of the settlement between the plaintiffs and defendants.
63. In the plaint and also in the oral evidence it is the contention of the plaintiffs that as per Ex.P6 - MoA they are entitled for 7 FDs in the name of J.J. Cedrey Singh and Smt. Sherin Cedrey in various modes of holding in the SBT, Nagercoil and the said amounts in deposits shall be allotted to them and therefore, they have already received the amount from the Bank in terms of Ex.P6 document. Whereas it is the contention of the defendants that the plaintiffs have already withdrawn a sum of Rs. 26,37,951/- out of 7 deposits S.B. Account standing in the name of J.J. Cedrey Singh and Smt. Sherin Cedrey and therefore the major portions of the amount was already withdrawn by them and hence, the plaintiffs are not 50 O.S. No. 7980 / 2013 entitled for the alleged sum of Rs. 30,73,256/- as sought in the prayer column of the plaint.
64. In Ex.P6 MoA in clause-4 it is mentioned that 'it is agreed that parties A & B shall jointly take steps to claim the balance amount in J.J. Cedrey Singh and Smt. Sherin Cedrey joint savings Bank Account in State Bank of Travancore, Koramangala and share the amount equally between them on realization from the Bank".
65. In the cross examination the defendant No.1 (DW1) has admitted that after releasing the title deeds from the SBT, Koramangala Branch, the said Bank released / credited an amount of Rs. 1,46,511/- to his account on 13.03.2012. Therefore, in terms of clause-4 presentin Ex.P6 document, the plaintiffs are also entitled for half share in the above amount of Rs. 1,46,511/-, which was already credited to the account of the defendant No.1 by SBT, Koramangala, Bangalore.
66. In Ex.P6 - MoA in Clause - 2 it has been mentioned that "Flat No. 014, with one car parking area in Block No. III of 51 O.S. No. 7980 / 2013 Brundavan Presidency Apartments, 26th A Cross, Near IBP Petrol Bank, HSR Layout, 2nd Sector, Haralakunte, Begur Hobli, Bangalore - 560 034 jointly registered vide sale deed No. 4679/2009-2010 dated 23.11.2009 registered at Bangalore in the names of J.J. Cedrey Singh and Smt. Sherin Cedrey is allotted to the 'A' party and since the 'B' party paid Rs.30.00 lakhs (Thirty lakhs) for the purchase of the Flat, this amount is to be returned to the 'B' party on sale of the property"
67. When such clear clause has been inserted in Ex.P6 MoA as the said MoA was acted upon between the arties, and the said document was entered into between them voluntarily, both the partier shall adhere to the terms and conditions of clause-2 also.
68. In the cross examination defendant No.1 (DW 1) has admitted that acting onEx.P6 document after giving disclaimer by the plaintiff Sukumar the bank has released the title deeds of the schedule property and also transferred the balance amount present in the joint account to my account as per Ex.P7 document. The above evidence of DW 1 apparently shows that 52 O.S. No. 7980 / 2013 Ex.P6 was acted between the parties and thereby after giving disclaimer by the plaintiff Sukumar the Bank has released the title deeds of the schedule property to the defendants. Therefore, in order to return a sum of Rs. 30 lakhs which was paid by the plaintiffs to the deceased persons for purchase of the flat, the plaintiffs are having right over the sale of the schedule property in order to realize the said amount. According to the plaintiffs they have got lien over the schedule property in order to recover the amount of Rs. 30 lakhs as shown in the plaint. But the defendants have denied the said contention of the plaintiffs and according to them after the death of the deceased persons they are the legal heirs of deceased J.J. Cedrey Singh (as he died later after the death of his wife and son). They alone are entitled for the right over the schedule property and the plaintiffs have no right of lien over the suit property.
69. During the court of argument, the learned counsel for the defendants drew attention of this court with regard to Section 171 of Contract Act, 1872. Section 171 of Contract Act reads as under.
"171. General lien of bankers, factor, wharfingers, attorneys and policy brokers - Banker, factors, 53 O.S. No. 7980 / 2013 wharfingers, attorneys of a High Court and policy brokers may, in the absence of a contract to the contrary, retain, as a security for a general balance of account, any goods bailed to them; but no other persons have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect."
70. The learned counsel for the defendants submits that in view of Section 171 of the Contract Act, the plaintiffs have no right to lien over the immovable property (schedule property) and therefore, they cannot claim lien over the schedule property as contended in the plaint.
71. At the time of arguments, the learned counsel for the plaintiffs has cited a decision of the Hon'ble Supreme Court reported in MANU/SC/0091/1992 (TRIVENI SHANKAR SAXENA VS. STATE OF U.P. AND OTHERS). In the above decision with regard go meaning of word 'lien', the Hon'ble Supreme Court has referred various dictionaries and that with regard to meaning of the word 'lien' in para No.20 to 23 of the order it has been mentioned as under.
"20. In words and phrases, permanent Edition Vol. 25 the definition of the word 'lien' when used to explain the equitable lien, is given thus:
A 'lien' from a legal standpoint, embodies the idea of a deed or bond, and necessarily implies that ther is something in existence to which it attaches.54 O.S. No. 7980 / 2013
21. At page 393 of the same volume it is stated:
The word 'lien' has a well-known signification. IN law it signifies an obligation, tie, or claim annexed to or attaching upon any property, without satisfying which such property cannot be demanded by it owner, vide Storm Vs. Waddell, N.Y.2 Sandf. Ch.494, 507, 508.
22. Again at page 399 of the same volume it is stated:
Lien" is a term of very large and comprehensive signification, but which never imports more than security, vide Mobile Building & Loan Ass'n v. Robretson, 65 Ala.382,383.
23. In Black's Law Dictionary, 6th Edition, at page 922 the following passage is found.
The word 'lien' is a generic term and, standing alone, includes liens acquired by contract or by operation of law".
72. In view of the meaning of the word 'lien' as mentioned in para 22 to 23 of the order in the above cited case, it can be stated that, as there is a clear clause inserted in Ex.P6 document by saying that the plaintiffs are entitled for an amount of Rs. 30 lakhs by sale of the schedule property (clause 2) as the said document was entered into by the plaintiffs and defendants voluntarily, in order to settle their dispute amicably between them, the plaintiffs are having lien over the schedule property in 55 O.S. No. 7980 / 2013 order to recover the amount that was paid by them i.e. Rs.30 lakhs to the deceased persons for purchase of flat.
73. In the cross examination, the defendant No.1 has admitted that as per the contents of Ex.D1 sale deed, his son and daughter-in-law purchased the schedule property for a sale consideration of Rs. 33,56,000/- from 'Brundavan Contractions'. He has also admitted that while purchasing the said flat, an amount of Rs.10 lakhs was take as loan by the deceased persons in SBT, Koramangala Branch, Bangalore. It is seen from the records that while purchasing the schedule flat by the deceased persons they have taken home loan of Rs. 10 lakhs in their joint account with SBT, Koramangala, Bangalore. The same is also admitted by the defendant No.1 in his cross examination. The defendant No.1 has also admitted in the cross examination that as both the borrowers died the housing loan since it was covered under the insurance police, the loan amount was cleared by the policy claim. Therefore, excluding this housing loan of Rs.10 lakhs, remaining sale consideration amount of Rs.23,56,000/- was paid by the deceased persons to the vendor out of the amount that was remitted / transferred by the plaintiffs for 56 O.S. No. 7980 / 2013 purchase of the flat. Therefore, in view of the above facts and circumstances of the case and for the reasons as stated supra, it is stated that the plaintiffs are having lien over the schedule property in order to recover a sum of Rs.30 lakhs from the defendants by selling the schedule property.
74. In the written statement at para No.21 even though the defendants have contended that as per the provisions of the Indian Succession Act, Class-I heirs will be father and mother and not father-in-law and mother-in-law and thereby the claim of the plaintiffs is not maintainable in the present suit. The said contention of the defendants is not applicable to the present case so far as in respect of claim of the plaintiffs for recovery of a sum of Rs. 30 lakhs from the defendants based on Ex.P6 MoA dated 13.09.2011. Hence, In view of all these reasons I answer the above issues accordingly.
75. ISSUE No.3: In the written statement, the defendants have contended that the defendant No.3 is not at all a necessary party to the present case. It is not much in dispute that the defendant No.3 is a tenant under the defendants and they let 57 O.S. No. 7980 / 2013 out item No.1 of schedule property to him on 01.05.2013 on a monthly rent of Rs. 17,000/-. The defendants have also received a sum of Rs.60,000/- from his as an advance amount. In the cross examination, DW1 has admitted the same.
76. Looking to the nature of the suit and the reliefs as sought by the plaintiffs, I feel that the defendant No.3 is also a proper and necessary party in this case. The contention of the defendants that the defendant No.3 is not a necessary party has no force at all. Hence, I answer the above issue accordingly.
77. ADDL.ISSUE No.1: In the plaint the plaintiffs have stated that, since the defendants by fraudulently releasing the title deeds and revenue records of the schedule item No.1 immovable property instead of jointly selling the property and settle the amount payable to them under MoA have let out the premises by receiving deposit amount and monthly rents from defendant No.3 and they are entitled for the reliefs of mesne profits on the rent and other amounts received by the defendants No.1 and 2 from the schedule item No. 1 property. In the prayer column the plaintiffs have sought for mesne profits 58 O.S. No. 7980 / 2013 in the rental deposit amount received by the defendants from the defendant No.3 or any other tenants in the Schedule item No.1 immovable property.
78. But in the written statement the defendants No.1 and 2 have denied the said plaint allegations. According to them, as per the provisions of the Indian Succession Act, they are the Class-I heirs and not father in-law and mother in-law and thereby the claim of the plaintiffs is not maintainable.
79. It is not much in dispute that when the deceased J.J. Cedrey Singh, his wife Smt. Sherin Cedrey and son were alive they purchased the schedule property under Ex.D2 sale deed dated 23.11.2009. After purchasing the said property, unfortunately, J.J. Cedrey Singh and Smt. Sherin Cedrey, son and daughter -in-law of the defendants No.1 and 2 and the son of the deceased were died in a major fire accident occurred due to the leakage of the gas in the flat. It is not much in dispute that the daughter in-law of plaintiffs by name Smt. Sherin Cedrey and her son succumbed to the burn injuries on 30.11.2009 and thereafter the son of the defendants J.J. Cedrey 59 O.S. No. 7980 / 2013 Singh was also succumbed to the injuries on 07.12.2009. This shows that after the death of Smt. Sherin Cedrey and her son, the said J.J. Cedrey Singh was alive and thereafter he died. As the parties are Christian the Indian Succession Act is applicable.
80. During the course of arguments, the learned counsel for the defendants drew the attention of this Court with regard to Section 35 and 42 of the Indian Succession Act, 1925. Section 35 and 42 of the Act reads as under:
"35. Rights of widower - A husband surviving his wife has the same rights in respect of her property, if she dies intestate, as a widow has in respect of her husband's property, if he dies intestate."
42. Where intestate's father living - If the intestate's father is living, he shall succeed to the property."
81. The learned counsel for the defendants would submits that, as the daughter-in-law of the defendants Smt. Sherin Cedrey and her son were died in a major fire accident and thereafter the son of the defendants was died later, in view of Section 35 and 42 of the said Act, the defendant No.1 who being the father of J.J. Cedrey Singh succeed to the immovable 60 O.S. No. 7980 / 2013 property left behind them i.e. suit schedule property and the plaintiffs have no right to succeed to the said property.
82. It is true that as submitted by the learned counsel for the defendants, as the daughter in-law of the defendants by name Smt. Sherin Cedrey and her son were died in a major fire accident and thereafter the son of the defendants No.1 and 2 J.J. Cedrey Singh was died i.e. after the death of his wife and son, in view of Section 35 and 42 of the Indian Succession Act the defendant No.1 who being the father of the deceased J.J. Cedrey Singh is entitle to succeed to the immovable property left behind the deceased i.e. suit schedule item No.1 property. The plaintiffs have no right to succeed to the schedule property.
83. As per Ex.P6 MoA dated 13.09.2011, the plaintiffs are entitled for sum of Rs.30 lakhs by sale of the schedule property from the defendants as per Clause 2 of the said document. They also entitled for half of the amount in the amount that was credited to the account of the defendant No.1 in view of Clause 4 of the said document. The plaintiffs are also entitled for the 7 deposit amounts as shown in clause 1 of the said document. 61 O.S. No. 7980 / 2013 Except the above said right under Ex.P6 document, the plaintiffs have no right to claim over the mesne profits from the monthly rentals derived from the schedule property and also advance amount that was paid by the tenant to the defendants No.1 and 2, as the defendant No.3 is a tenant under the defendants No.1 and 2. Therefore, the claim of the plaintiffs regarding mesne profits as sought in the plaint cannot be considered as there is no such clause has been inserted in Ex.P6 document. In the circumstances, it is stated that the plaintiffs are not entitled for mesne profits as sought in the plaint. Hence, I answer the above issue accordingly.
84. ISSUE No.4: In view of my reasons as stated in issue No.1 to 3 and additional issue No.1 and the conclusion arrived at, I proceed to pass the following:
ORDER The suit of the plaintiffs is partly decreed with costs as under:
It is declared that the plaintiffs have lien for a total sum of Rs.30 lakhs only on schedule 'B' & 'C' properties of suit schedule item No.1 and entitled to recover the same by alienating it.62 O.S. No. 7980 / 2013
Further, the plaintiffs are also entitled for half of the amount, out of Rs.1,46,511/- i.e. Rs.73,255.50, rounded off to Rs.73,256/- (Rupees seventy three thousand two hundred and fifty six only) which was released / credited to the account of the defendant No.1 on 13.03.2012 by SBT, Koramangala Branch, Bangalore and they have lien for the said amount on schedule B & C properties of suit schedule item No.1 and entitled to recover the same by alienating it.
The relief as sought by the plaintiffs regarding mesne profits in schedule 'C' flat of suit schedule item No.1 cannot be granted and the same is rejected.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed by him, corrected and then pronounced by me in open court, this the 24th DAY OF NOVEMBER 2018) (H. CHANNEGOWDA) XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38) BANGALORE ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
PW1 - Sri. Sukumar Arnold PW2 Sri. P. Selvaraj
Documents marked on behalf of the plaintiff/s:
Ex.P1 Certified copy of sale deed
63 O.S. No. 7980 / 2013
Ex.P2 Death Certificate
Ex.P3 Death Certificate
Ex.P4 Office copy of letter dated 19.01.2010
Ex.P4(a) Signature
Ex.P5 Survivor Certificate
Ex.P6 Memorandum of Agreement
Ex.P7 Bank letter
Ex.P8 Legal notice
Ex.P9 Postal receipt
Ex.P10 Postal receipt
Ex.P11 Reply notice
Ex.P12 Legal notice
Ex.P13 Postal Acknowledgement
Ex.P14 Legal notice
Ex.P15 Reply notice
Ex.P16 Postal Acknowledgment
Ex.P17 Encumbrance Certificate
Ex.P18to24 Bank Challans
Ex.P25to31 Bank Statement
Ex.P32to34 Copy of bank pass book
Ex.P35 Bank Statement
Ex.P36 Certified copy of sale deed dated 17.06.2009
Ex.P36(a) English Translation of Ex.P36
Ex.P37 Certified copy of sale deed dated 06.07.2009
Ex.P37(a) English Translation of Ex.P37
Ex.P38 Certificate issued by Tahsildar dated 28.05.2016
Ex.P39 Copy of Death Certificate
Ex.P40to42 3 Photographs.
List of witnesses examined on behalf of the Defendant/s:
DW1 Sri. Joseph Dharmsingh Documents marked on behalf of the Defendant/s:
Ex.D1 Original Agreement of sale deed dated 19.02.2009 Ex.D2 Original Registered sale deed dated 23.11.2009 Ex.D3to5 Original Rental agreements Ex.D6 Office copy of notice Ex.D7 Reply dated 12.07.2013 Ex.D8 Original legal heirs certificate 64 O.S. No. 7980 / 2013 Ex.D9 Original information letter Ex.D9(a) English Translation Ex.D10 Original information letter Ex.D10(a) English Translation Ex.D11 Original information letter Ex.D11(a) English Translation XXXVII ADDL. CITY CIVIL JUDGE, (CCH-
38), BANGALORE.65 O.S. No. 7980 / 2013
Judgment passed and pronounced in the open court (vide separate judgment). The operation portion of the order reads thus -
ORDER The suit of the plaintiffs is partly decreed with costs as under:
It is declared that the plaintiffs have lien for a total sum of Rs.30 lakhs only on schedule 'B' & 'C' properties of suit schedule item No.1 and entitled to recover the same by alienating it.
Further, the plaintiffs are also entitled for half of the amount, out of Rs.1,46,511/- i.e. Rs.73,255.50, rounded off to Rs.73,256/- (Rupees seventy three thousand two hundred and fifty six only) which was released / credited to the account of the defendant No.1 on 13.03.2012 by SBT, Koramangala Branch, Bangalore and they have lien for the said amount on schedule B & C properties of suit schedule item No.1 and entitled to recover the same by alienating it.
The relief as sought by the plaintiffs regarding mesne profits in schedule 'C' flat of suit schedule item No.1 cannot be granted and the same is rejected.
Draw decree accordingly.
.
XXXVII ACCJ, (CCH-38)