Bangalore District Court
Sri.R.Rajshekar vs Smt.T.R.Nirmala on 31 July, 2020
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY
(CCH-67)
DATED: This the 31 st day of July, 2020
PRESENT
Smt. K.KATHYAYANI, B.Com., L.L.M.,
LXVI Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.No.6086 of 2014
PLAINTIFF: Sri.R.Rajshekar,
S/o late Sri T.Ramachandra Reddy,
Aged about 56 years,
No.1162, 12th A Main,
HAL II Stage, Indiranagar,
Bengaluru - 560 008
Vs.
DEFENDANTS: 1. Smt.T.R.Nirmala,
D/o late Sri.T.Ramachandra Reddy,
Aged about 55 years,
No.99, 2nd Main, 11th Cross,
I Stage, Indiranagar,
Bengaluru - 560 038.
2. Smt.T.R.Gemini,
D/o late Sri T.Ramachandra Reddy,
Aged about 53 years,
No.98, Ramakrishnappa Road,
10/3 Abdul Hafeez Road,
Cox Town, Bengaluru - 560 005.
3. M/s Mascot Constructions,
A registered partnership firm
No.304, A Wing,
Queens Corner Apartments,
No.3, Queens Road,
Bengaluru - 560 001.
2 O.S.No.6086/2014
Represented by its partner
Mr.Vipul Kumat.
Date of institution of the suit: 08.08.2014
Nature of the suit (suit on Suit for Declaration &
pronote, suit for declaration Possession.
and possession suit for
injunction,etc) :
Date of the commencement of 28.09.2018
recording of the evidence:
Date on which the Judgment 31.07.2020
was pronounced:
Total duration Year/s Month/s Day/s
05 11 23
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(Smt.K.KATHYAYINI),
LXVI Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
The plaintiff has filed this suit against the defendants for the relief of;
1) declaration of title over the suit A schedule property (for short, "the suit A property") and the possession thereof.
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2) declaration that the registered gift deeds both dated 31.12.2003 in favour of the 1 st and 2nd defendants are illegal and not binding on him.
3) declaration that the registered partition deed dated 25.08.2006 is illegal and not binding on him.
4) declaration that the registered sale deeds both dated 25.05.2009 in respect of the suit B and C schedule properties (for short, the suit B and the suit C properties") in favour of the 3rd defendant are illegal and not binding on him.
5) permanent injunction not to interfere with his peaceful possession and enjoyment of the suit A property.
6) permanent injunction not to alienate the suit A property and
7) costs of the suit and such other further reliefs as are just and proper to grant in the interest of justice.
2. The brief facts of the case of the plaintiff are that;
1) He is the elder brother of the 1 st and 2nd defendants and all of them are the children of late Sri.T.Ramachandra Reddy also known as T.R.Reddy and late Smt.Kamala Reddy.
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2) The 3rd defendant is a partnership firm which has allegedly purchased the suit B property from the 1 st defendant and the suit C property from the 2nd defendant.
3) During the life time of their parents, he being the only male child, out of manifestation of their love and affection, his mother had executed the registered WILL dated 17.01.1998 bequeathing all her movable and immovable properties including cash and bank balance in his favour.
4) He had filed the suit for partition in OS.No.1226/2005 before the City Civil Court, Bengaluru against the 1st and 2nd defendants and others seeking partition and separate possession of his 4/7 th share in the property measuring 4 acres in Sy.No.57/2, Benniganahalli Village, Krishnaraja Puram Hobli, Bengaluru South Taluk (for short, "Benniganahalli Property") and the same came to be decreed vide judgment dated 15.03.2012 holding that the WILL dated 17.01.1998 executed by his mother is valid and binding.
5) His father had also executed the registered WILL dated 17.01.1998 in his favour bequeathing all his movable 5 O.S.No.6086/2014 and immovable properties including the suit A property and any other movable and immovable properties that he may acquire in future. His father died on 15.04.2014.
6) During the life time of his father, his father had lot of love and affection and had lot of care about his well being. Both his father and mother had executed their respective WILLs bequeathing all their movable and immovable properties in his favour on the same date i.e. on 17.01.1998 and got the same registered with an intention that all their movable and immovable properties shall go to him after their death.
7) Both the WILLs mention that he was residing in America and that fact did not diminish the love and affection of his parents towards him.
8) His father was an employee in Government of India Service and retired as a Station Partner of All India Radio, Bengaluru on 30.06.1986. Apart from the income through his monthly pension, his father had no other source of income.
9) After the death of his mother on 06.07.1998, his father was residing alone in the house at Indiranagar, 6 O.S.No.6086/2014 Bengaluru and during the said period, he was residing at United States of America. He wanted to return to Bengaluru to look after his father and also to look after the properties which had been gifted to him and the properties that had been purchased by his father from the amount belonging to him and his mother and other properties.
10) The 1st and 2nd defendants wanted to knock off the properties standing in his name and in the name of his father, had forced his father to tell him that his father would look after himself and he need not come to Bengaluru to look after his father.
11) Taking advantage of the situation, the 1st defendant who is a divorcee moved into the house of his father in the year 1999 and started residing in the said house.
12) During July-1999, he came to Bengaluru to perform the 1st death anniversary of his mother. At that time, he was shocked to see that the 1st defendant had moved into the house of his father and was dictating terms to his father. He was shocked to see that his father was acting very meekly and submissively before the 1 st and 2nd 7 O.S.No.6086/2014 defendants. They had acquired complete control over the activities of his father and were together controlling his father. He trusted his father and had signed several blank papers.
13) After the death of his mother on 06.07.1998, the 1st and 2nd defendants grabbed the cash and jewelry left behind by his mother for him. He is staying out of Bengaluru since 1987 and out of India since May-1989. Taking advantage of his absence, the 1 st and 2nd defendants took away all the jewelry, cash and valuable items belonging to his deceased mother even though his mother had expressly bequeathed all her jewelry, cash, movables and residuary assets to him.
14) The 1st and 2nd defendants maliciously and with mala fide intention, started damaging, destroying and disposing off his personal belongings which were kept by him in his mother's house. Whenever he came to India, the 1st and 2nd defendants used to make his life miserable by abusing him and used to spread defamatory statements about him.
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15) Though the 1st defendant was given an apartment at Somerset Apartments, M.G.Road, Bengaluru by his mother, she started staying with his father at his house. Taking advantage of his absence, the 1 st and 2nd defendants started using undue influence upon his father to act adverse to his interests.
16) He used to call his father regularly from USA every Saturday. After the 1st defendant gained control over his father, she started disconnecting his phone calls instead of passing them on to his father, thereby making it impossible for him to communicate with his father freely.
17) During August-2003, since his father had paralytic stroke, he came to India. During that time, the 1 st and 2nd defendants had unduly influenced his father to take many actions without his approval. He also noticed that his father had become a puppet in the hands of the 1 st and 2nd defendants. The 1st defendant filed a false police complaint against him in pursuance of her obsession to harass and humiliate him. But, on inquiry, the police authorities found that the allegations of the 1st defendant were false.
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18) Under these circumstances, on 21.08.2003, he revoked the power of attorney dated 03.07.1998 executed by him in favour of his father.
19) He intended to visit India during April-2004 along with his wife and two daughters whom his father had never seen and informed the same to his father. As per the dictates of the 1st and 2nd defendants, his father asked him to make his own arrangements for his stay at a hotel and not to bring his family to the house and he would visit hotel to see his grand daughters.
20) When he visited Bengaluru, he along with his family stayed in a hotel and the defendants prevented his father to visit the hotel to see his children. After waiting for several weeks to meet his father, on the last day of his stay in Bengaluru, due to attachment towards his father, he visited his father at the latter's residence along with his wife and children.
21) His father played with his grand daughters and showered his natural love and affection upon his grand daughters. The 1st defendant threatened his father in native tongue Telugu that she would walk out of the house. 10 O.S.No.6086/2014 Because of this threat, his father put his grand children down and walked away from them.
22) The defendants were in dominating position and were controlling the will of his father. His father who was aged 71 years, was not mentally and physically fit after the death of his mother on 06.07.1998. With every passing year, his father's health condition deteriorated. His father was suffering from Alzheimer's disease.
23) During the year 2011, the 1 st defendant issued a public notice in a newspaper in Bengaluru that his father is missing from his house at Indiranagar. Because of harassments meted out by the 1st and 2nd defendants, his father became diabetic and was under medication from 1999. From 1999, his father was not at all having a mind of his own as he was under the undue influence of the 1 st and 2nd defendants.
24) In OS.No.1226/2005 seeking for partition of Benniganahalli Property, filed by him against the defendants, there was the order of temporary injunction dated 16.02.2005, restraining his father from alienating the property. Mentioning the said interim order, the copies 11 O.S.No.6086/2014 of documents were sent to his father and the 1 st and 2nd defendants. The summons were served on them and they have put in their appearance.
25) Though the 1st and 2nd defendants had the knowledge of the temporary injunction, they compelled his father to execute the gift deeds dated 02.03.2005 in their favour in respect of the undivided shares in the Benniganahalli Property.
26) The 1st and 2nd defendants have made undue influence and coerced his father to do many illegal acts and deeds and managed to execute an alleged lease agreement dated 15.11.2004 in favour of a tenant M/s Vijai Auto Sales and Services Pvt. Ltd. in respect of the Benniganahalli Property, representing his father as power of attorney holder, even though, he had revoked the GPA and received Rs.10 lakhs and a monthly rent of Rs.1 lakh for a period of 4 years.
27) The tenant has filed written statement in OS.No.1226/2005 submitting that the 1st and 2nd defendants had made him to believe that his father is his GPA holder and his father being retired Government of 12 O.S.No.6086/2014 India servant would not have represented him in any transaction based on his revoked power of attorney.
28) He had never authorized his father to enter into any alleged agreement of sale dated 05.02.1999 in favour of the 1st defendant or in favour of any other person in respect of the Benniganahalli Property or any share in it. He came to know about the same only when the 1 st defendant filed her written statement on 25.06.2005 in OS.No.1226/2005.
29) The said sale agreement was in favour of the 1st defendant to sell 1/7th share which measures about 24,900 square feet in the four acres of Benniganahalli Property for a sum of Rs.2 lakhs. The alleged sale consideration of Rs.8/- per square feet is a ridiculously small sum of money. The alleged agreement of sale is a fraudulent document. The 1st defendant had not paid any sale consideration to him. In the judgment passed in OS.No.1226/2005, it is held that the said sale agreement is a fabricated document.
30) The 1st and 2nd defendants and their sister have executed three release deeds dated 01.09.1999 and 13 O.S.No.6086/2014 17.09.1999 in favour of his father for a valuable consideration of Rs.20 lakhs each in respect of Benniganahalli Property releasing their alleged 1/7 th share each in favour of his father.
31) The said consideration was paid from the funds belonging to him and from the money that was bequeathed to him by his mother. Since the consideration was paid by him, his father obtained 3/7 th undivided share in the Benniganahalli Property as his benamidar and his father was holding the 3/7th share of the said property in trust and for and on behalf him and for his benefit.
32) His father had no right whatsoever to gift 1/14 th share each in the Benniganahalli Property to the 1 st and 2nd defendants and their sister under three separate registered gift deeds dated 11.03.2003.
33) His father had also no right to gift 3/14 th undivided share in the Benniganahalli Property jointly to the 1st and 2nd defendants and their sister under the registered gift deeds dated 02.03.2005.
34) All the gift deeds purportedly gifting a total of 3/7th undivided share in the Benniganahalli Property are 14 O.S.No.6086/2014 wholly illegal and void and are the results of undue influence used by the 1st and 2nd defendants upon his father even though it was not the intention of his father to give 3/7th share.
35) After having obtained Rs.20 lakhs under the release deeds dated 01.09.1999 and 17.01.1999 from his funds, the 1st and 2nd defendants have again fraudulently obtained the gift deeds allegedly gifting 1/7 th share each in the Benniganahalli Property without paying any consideration to him.
36) His maternal grand father late Sri.M.Munivenkatappa had executed the gift deed dated 25.09.1966 in favour of his mother transferring the Benniganahalli Property. During 1977, the said property was developed by him and his mother by borrowing money from banks and constructing industrial sheds on the said property and the loan was repaid out of rents paid by the tenants. The said property was leased to Madura Coats Limited in the year 1981 and till 2004, they were the tenants.
15 O.S.No.6086/2014
37) He had a joint savings bank account No.16288 along with his mother and subsequent to her death, with his father till his death, in Canara Bank, Indiranagar, Bengaluru. The rental income from the Benniganahalli Property was being credited to the said joint account and his father used to operate the said joint account as he was staying away in America.
38) His mother also had a savings bank account No.16287 along with his father in Canara Bank Indiranagar, Bengaluru. The rents from the Benniganahalli Property was also being credited to the said joint account till January-2004. From February-2004, the 1st and 2nd defendants compelled his father to credit the share of rental income of his mother to the personal account of his father bearing No.166808 with Canara Bank, Indiranagar, Bengaluru contrary to the WILL of his mother.
39) Under the WILL dated 17.01.1998, his mother had bequeathed her share of rental income to him. The entire amounts credited to the share of his mother belonged to him after her death. The rental income credited 16 O.S.No.6086/2014 to the share of his father personal account also belonged to him.
40) In the WILL dated 17.01.1998, his mother bequeathed all her movable and immovable properties including bank balance to him. He is entitled to the 2/7 th share of rental income of his mother from the date of her death on 06.07.1998.
41) Despite of the fact that his mother bequeathing the rental income to him, the 1st and 2nd defendants have used undue influence on his father and have withdrawn huge amounts for their personal benefits and their relatives. Since he was residing in America, his father was operating the accounts.
42) After his father fell ill, from 1999 onwards, there was no need for him to withdraw huge amounts from the bank account for his personal use. All the withdrawals from his account No.16288, from the account of his mother bearing No.16287 and the account of his father bearing No.166808 running into several crores of rupees have been made by his father because of the undue influence made by the 1st and 2nd defendants on his father who have 17 O.S.No.6086/2014 managed to make him issue several cheques for huge amounts.
43) By July-2007, his father became extremely feeble and unable even to recognize the people. However, the 1 st and 2nd defendants have deposited lakhs of rupees in cash and obtained lakhs of rupees in demand drafts. His father would never have done huge transactions in cash on his own.
44) His father was retired from the Government Service during the year 1986. Apart from the pension, he had no any other source of income. The statement of income for the assessment year 1997-98 shows the annual income as Rs.28,428/-.
45) Out of the funds available in his bank account, his father had purchased 8.72 guntas of land in Sy.No.36 of Channasandra Village, Uttarahalli Hobli, Bengaluru South Taluk at Schedule A-1 from one Smt.Thayamma for Rs.50,000/- vide sale deed dated 16.08.1993 and 19¾ guntas in the same survey number at Schedule A-2 for Rs.75,000/- vide sale deed dated 25.02.1994. 18 O.S.No.6086/2014
46) From the funds available in the SB Account No.16287 of his mother which was bequeathed to him, his father had withdrawn Rs.1 lakh on 17.01.2002 and Rs.5 lakh on 18.01.2002 and had purchased further land of 8.72 guntas in the same survey number i.e., the above Sy.No.36 at Schedule A-3 for a sale consideration of Rs.1,80,000/- vide sale deed dated 18.01.2002.
47) All the properties at schedule A-1 to A-3 purchased by his father stated above are contiguous to one another and the composite property comprising of all the three properties is described at the suit A schedule i.e., the suit A property which was assigned katha Nos.942, 943 and 944 by the Rajarajeshwari Nagara CMC, Bengaluru.
48) His father had purchased the suit A property from and out of the funds available in the bank account belonging to him and the bank account of his mother which was bequeathed to him. The intention of his mother and father was that the suit A property eventually go to him and none else.
49) As is evident from the WILL dated 17.01.1998, the intention of his father was to bequeath all movable and 19 O.S.No.6086/2014 immovable properties to him. The 1st and 2nd defendants have played fraud and compelled his father to execute the gift deeds in their favour in respect of the suit A property and managed to get executed the gift deeds dated 30.12.2003 where under his father has gifted 50% of undivided share in the suit A property to the 2 nd defendant. This gift deed is not supported by any consideration.
50) The 1st and 2nd defendants have executed the partition deed dated 25.08.2006 allegedly partitioning the suit A property by metes and bounds where under a portion measuring 20,173 square feet which is described at the suit B schedule i.e., the suit B property fell to the share of the 1st defendant and the other remaining portion measuring 20,173 square feet which is described in the suit C schedule i.e., the suit C property fell to the share of the 2nd defendant.
51) The 1st defendant allegedly sold the suit B property to the 3rd defendant by executing a registered sale deed dated 25.05.2009.
52) The 3rd defendant has knowledge of his rights in the suit properties as the partners of the 3 rd defendant 20 O.S.No.6086/2014 knows his family. He had issued public notice in the Deccan Herald newspaper dated 18.07.2005 in Bengaluru regarding the suit in OS.No.1226/2005 pertaining to the Benniganahalli property and the 3rd defendant was aware of the disputes amongst his family members. Having through knowledge of his rights over the suit B property, the 3rd defendant has purchased the same.
53) The 3rd defendant has also purchased the suit C property from the 2nd defendant vide the registered sale deed dated 25.05.2009.
54) The above stated transactions in respect of the suit A, B and C properties are tainted by fraud, undue influence and coercion practiced by the 1st and 2nd defendants on his father. The 1st and 2nd defendants were standing in a fiduciary capacity in their relationship with his father. His father was sick and feeble both mentally and physically at the time when the said transactions took place. The relationship between his father and the 1 st and 2nd defendants was such that the 1st and the 2nd defendants were in a position to dominate the will of his father. 21 O.S.No.6086/2014
55) In the registered WILL dated 17.01.1998, his father has specifically bequeathed in his favour all the movable and immovable properties including the suit A property and all other properties that his father may acquire in future. Having bequeathed all his (father's) properties to him, his father would not have gifted the suit A property to the 1st and the 2nd defendants.
56) His father had purchased the site No.99, 2 nd Main, 11th Cross, I Stage, Indiranagar, Bengaluru 560 038 out of funds given by him and his mother earned by selling paddy grown on the Benniganahalli property. He along with his mother had also provided funds for construction of residential building on the said property. His father always wanted to give the said property to him and bequeathed the same in his favour in the WILL dated 17.01.1998.
57) His father has executed the gift deed dated 15.04.2004 in respect of the Indiranagar property to the 1 st and 2nd defendants has signed the said document as witness. The said property was the only property of his father at the time of the alleged gift.
22 O.S.No.6086/2014
58) The 1st defendant has deliberately encumbered the said Indiranagar property by allegedly mortgaging the same with a bank as security and obtained a loan of Rs.30 lakhs on 18.09.2012. The 1st defendant has played fraud on him by mortgaging the said property which is bequeathed to him.
59) The 1st and 2nd defendants have compelled his father to pay a sum of Rs.10 lakhs on 15.07.2001 to the 2 nd defendant from the SB A/c No.16287 of his mother in Canara Bank, Indiranagar, Bengaluru to which account the rental share of his mother was being credited and the same had been bequeathed to him by his mother. The 2 nd defendant and her husband Sri.K.Raghunath have received several payments from the said bank account.
60) The 2nd defendant has purchased the property bearing No.442 in the layout formed by NGEF Employees House Building Co-Operative Society Limited situated in Sadananda Nagar, Bengaluru measuring 2,490 square feet under the sale deed dated 29.11.2001. The 1 st defendant has signed the said sale deed as a witness. 23 O.S.No.6086/2014
61) While purchasing the said property, the 1 st and 2nd defendants have influenced his father to issue a self cheque on 28.11.2001 for Rs.2,30,000/- which was encashed by the 2nd defendant and made him purchase a demand draft for Rs.6,22,500/- on 29.11.2001 to use the same for consideration to purchase the said property.
62) His father had agreed with him that he would purchase immovable properties in his name for his benefit utilizing the money that was being credited to his SB A/c No.16288 and account of his mother bearing No.16287 which was bequeathed in his favour.
63) But the 1st and and 2nd defendants have drawn the said money by making undue influence on his father. He had not authorized his father to purchase any property in the name of the 2nd defendant. Since the NGEF property was purchased out of his funds, the 2 nd defendant cannot be the beneficiary of her own fraud.
64) He is the real owner of the said property and the 2nd defendant is holding the said property in trust and for his benefit. He came to know about the said sale deed on 24 O.S.No.6086/2014 01.07.2014 and he is initiating separate legal proceedings claiming ownership of the said NGEF Layout property.
65) His father died on 15.04.2014 at Apollo Mallya Hospital, Bengaluru and by that time, was aged 86 years. He came on 16.04.2014 from USA to perform the funeral ceremonies of his father. The 1 st and 2nd defendants did not allow him to keep the body of his father inside the house of his father at No.99, 2nd Main, Indiranagar, Bengaluru for mourners to pay their last respects.
66) He kept the body of his father in the garage of the said house. The 1st and 2nd defendants were openly and arrogantly displaying their hospitality towards him. They did not allow him to perform the 11 th day ceremony of his father in the said house and he had to perform the ceremony in a hotel at Bengaluru.
67) He was shocked to hear the 1 st defendant was claiming ownership over the Indiranagar property since his father had long back told him that he had executed the WILL and bequeathed all his movable and immovable properties to him. He has obtained the copy of the WILL 25 O.S.No.6086/2014 dated 17.01.1998 on making enquiry in the Sub Registrar's Office.
68) He came to know for the first time of the execution of the alleged two gift deeds both dated 30.12.2003 and partition deed dated 25.08.2006 as well as the two sale deeds dated 25.05.2009 when he obtained the copies of the same on 30.06.2014 and 02.07.2014.
69) The cause of action for the suit arose on 16.08.1993, on 25.02.1994 and on 18.01.2002 when his father purchased the suit A property from his funds; on 17.01.1998 when his father executed his WILL bequeathing all his movable and immovable properties in his favour; on 30.12.2003 when his father allegedly executed the gift deeds in favour of the 1 st and 2nd defendants; on 25.08.2006 when 1st and 2nd defendants allegedly partitioned the suit A property into the suit B and C properties; on 25.05.2009 when the 1 st and 2nd defendants sold the suit B and C properties to the 3 rd defendant; on 15.04.2014 when his father died; on 30.06.2014 and 02.07.2014 when he came to know the execution of the said gift deeds, partition deed and the sale 26 O.S.No.6086/2014 deeds for the first time and on various dates when the defendants are attempting to alienate the suit properties. Hence, prayed to decree the suit as sought for.
3. In response to the due service of summons, the 1 st and 2nd defendants appeared through their common counsel and filed their common written statement wherein they have admitted their relationship with the plaintiff and denying para wise the plaint averments have contended that;
1) The address of the plaintiff as mentioned in the cause title to the plaint is neither true nor correct. The plaintiff is not the resident of the premises bearing No.1162, 12th A Main, HAL II Stage, Indiranagar, Bengaluru 560 008. This premises is owned by Sri.S.C.Burman who is making a living in this premises along with his other family members and he is no way related to the plaintiff.
2) Plaintiff is the citizen of USA since 1994.
3) The plaintiff has lost love and affection of his parents as he went on denying their advice for his up coming and left the parental home sometime during the 27 O.S.No.6086/2014 year 1989 and since then he did not stay in the company of his parents and others at home.
4) The plaintiff went on putting forward unrighteous claims against them while not attending to their basic minimum day to day needs and requirements. When their parents fell ill, the plaintiff did not even go home to see them despite being informed of the serious ailments with which they were suffering from.
5) Other than appearing as a guest artist at the time of cremation of his parents, the plaintiff did not show his face at all at any point of time after he left the parental house. The plaintiff did not also participate in the obsequies and other religious ceremonies of their parents which were performed at the place where they last resided.
6) Neither their father nor their mother had bequeathed any of the properties owned and possessed by them in favour of the plaintiff. The WILL dated 17.01.1998 referred to by the plaintiff as the one said to have been executed by his parents is false, forged, fabricated and concocted document and got up by the plaintiff in collusion with some of the interested persons.
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7) The judgment and decree passed in OS.No.1226/2005 is under challenge by them in
RFA.No.1062/2012 before the Hon'ble High Court of Karnataka, Bengaluru and there is an order of stay of execution of the decree.
8) Their parents never intended to give movable and immovable properties owned by them to the plaintiff and the question of the 1st defendant being in possession of the original WILL dated 17.01.1998 alleged to have been executed by their parents in favour of the plaintiff besides being false is nothing but a pigment of imagination on the part of the plaintiff.
9) At no point of time, the plaintiff came to India not only to look after his parents but also to manage the properties. It is not the true fact that their father was acting very meekly and submissively before them and was under their control.
10) The properties described in the A-1, A-2 and A-3 are the self acquisitions of their father. The 2 nd defendant who was having sufficient funds was also putting the funds to her parents and the 1st defendant had placed all her 29 O.S.No.6086/2014 earnings into the hands of her parents. Hence, their parents were not depending on the plaintiff and were leading comfortable life.
11) Their father retired from service as a Senior Class-I Officer of the Central Government during 1986. In addition to the service benefits, he used to get fabulous amount by way of pension every month and had plenty of money at his own for the acquisition of the schedule A-1, A-2 and A-3 properties.
12) Their father acquired A-1 schedule property on 16.08.1993 for a consideration of Rs.50,000/- and schedule A-2 property on 25.08.1994 for a consideration of Rs.75,000/- and schedule A-3 property on 18.01.2002 for a sum of Rs.1,80,000/- and the plaintiff was out of Bengaluru and India between 1993 to 2002 and was disassociated himself from his parents and has not even contributed a single rupee for acquisition of the said properties.
13) Their father on 13.12.2003, gifted the suit properties in view of natural love and affection and due to the fact that they were taking care of all the needs and 30 O.S.No.6086/2014 requirements of their parents and the plaintiff had kept himself away from the family.
14) On 25.08.2006, they got partitioned the properties acquired by them through the registered gift deeds dated 13.12.2003. The suit B property was allotted to the share of the 1st defendant and the suit C property was allotted to the share of the 2nd defendant. Hence, they are the absolute owners of the suit B and C properties and they have also got changed the katha in their respective names.
15) On 25.09.2009, for a valuable consideration, they have executed the registered deeds of Conveyance in respect of the suit B and C properties in favour of the 3 rd defendant and put it in the absolute and exclusive possession of the said properties.
16) The claim brought by the plaintiff against them is not entertainable and is also barred by time. The plaintiff was not at all in possession of the suit properties at any point of time when they were held by his father or subsequent when they were held by his sisters or by the 3 rd defendant.
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17) The suit is not properly valued and the court fee paid is insufficient. The market value of the properties as on the date of filing of the suit was more than Rs.10 Crores.
18) Most of the say of the plaintiff as averred in paras 11 to 26 regarding the allegation that they have grabbed the cash and jewelery and he was not permitted to meet his father when he came to India and that the 1 st defendant inspite of allotting an Apartment to her, was living with his father and that they are making false and defamatory statements against him are all false.
19) What is stated by the plaintiff in relation to the finding of the trial Court in OS.No.1226/2005 is certainly unwarranted. The plaintiff left Bengaluru years and years ago and never showed any love or affection either towards his parents or towards his other siblings. He had become virtually stranger to the family. The plaintiff during the life time of their father, had brought several actions against him and they were came to be resisted by their father successfully.
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20) Neither themselves nor their father have disobeyed the order or command of a Court of Law at any point of time. In the event of there being any violation of any order that had been passed against them, the plaintiff who has been hell bent upon harassing them and their father would have certainly initiated action that was warranted in relation to the alleged violation of the order of a Court of Law.
21) Execution of Power of Attorney by the plaintiff in favour of their father empowering and authorizing their father to do all acts, deeds and things that are necessary in relation to the subject matter of the said document is not in dispute. The agreement to sale in favour of the 1 st defendant in respect of the property came into existence when the said GPA was in force. Their father was well educated and was not influenced by anybody including them.
22) The documents produced by them along with their late father in OS.No.1226/2005 are all true and genuine documents and the documents which the plaintiff is placing his reliance in support of his claim against them 33 O.S.No.6086/2014 are all false, forged, fabricated and got up documents in collusion with certain interested persons to put forward a false and untenable claim against them.
23) During the year 1997, the plaintiff was a student studying BSC degree in Christ College, Bengaluru. He had no independent income of his own. Their father had opened separate joint accounts not only along with the plaintiff but also jointly in the name of his three daughters and his wife in the Canara Bank, Indiranagar Branch, Bengaluru. The income derived out of the Benniganahalli property was being credited into the joint account and the same were being operated by their father.
24) The plaintiff had not borrowed any amount from any one at any point of time for any purpose whatsoever, let alone, for the improvement of the Benniganahalli property. The amount borrowed by their parents was discharged from the income derived from the Benniganahalli property.
25) They have not received any amount i.e., an amount of Rs.20 lakhs each for relinquishing their rights in respect of Benniganahalli Property. They have never 34 O.S.No.6086/2014 compelled their father to credit the income of their mother into the personal account of their father. The plaintiff has made false statements regarding the execution of the WILL dated 17.01.1998 and transferring the amount of rent fetched from the Benniganahalli property to his account.
26) The suit properties are not purchased out of the amounts of plaintiff and were not purchased with an intent of bequeathing the same to the plaintiff and the same were acquired from the funds of their mother and the funds provided by them and the said properties were not acquired for the benefit of the plaintiff.
27) They also find a place in the registered WILL dated 17.01.1998 said to have been executed by their father and it is false that they by playing fraud upon their father, got executed the gift deeds both on 30.12.2003 i.e. subsequent to the WILL dated 17.01.1998.
28) The plaintiff has made false statements regarding the issuance of self cheques by his father for huge amounts to them and that they have purchased the demand drafts and invested the same to acquire the Sadananda Nagar property and for stamp duty and other 35 O.S.No.6086/2014 registration expenses and that he had not authorized his father to purchase any property in the name of the 2 nd defendant and hence, he reserves the right in the said property.
29) The evidence which the plaintiff himself has led in OS.No.1226/2005 in which suit, he had sought for partition of the properties which are situated in Benniganahalli Village, would manifestly indicate that the false, forged and fabricated WILL dated 17.01.1998 upon which the plaintiff is basing his claim in respect of the suit properties even if true is in fact, not the last WILL and Testament executed by their father in respect of the properties which were owned and possessed by him. Consequent to the execution and registration of the gift deeds dated 30.12.2003 under which the suit properties came to be gifted in their favour the WILL dated 17.01.1998 even if true, assumes no importance whatsoever.
30) Their father breathed his last on 15.04.2014. The two gift deeds came to be executed on 30.12.2013 and the same is not disputed by the plaintiff. Their parents apart 36 O.S.No.6086/2014 from the pension which their father was getting, were also having other source of income, inasmuch as major portion of the income which they were having were being enjoyed by their parents. Their father out of his own funds had acquired the suit properties. The plaintiff never had any right, whatsoever in respect of the suit properties or in respect of any portion thereof.
31) The suit is hopelessly barred by time. Consequently, the declaratory and injunctory relief sought for by the plaintiff cannot be granted. The suit is not properly valued and the Court fee paid is not sufficient. Hence, prayed to dismiss the same with exemplary costs in the interest of justice and equity.
4. The 3rd defendant appeared through his counsel and filed its written statement submitting that the suit filed by the plaintiff is not maintainable either in law or on facts. The plaintiff has not approached the Court with clean hands. He has suppressed the true and correct facts.
1) The plaintiff has sought omnibus reliefs which cannot be bestowed upon him for the reason that the suit is hopelessly barred by limitation.
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2) The plaintiff has made out triable issues on the pleadings of hear say, concocted story and there is no substance in the pleadings. The plaintiff is not even entitled to equitable or discretionary reliefs.
3) The averments made by the plaintiff with regard to the relationship between himself and the 1st and 2nd defendants is not within its knowledge.
4) It has purchased the suit B and C properties. The execution of WILL dated 17.01.1998 by the parents of defendants and the plaintiff bequeathing all their movable and immovable properties in favour of plaintiff is not within its knowledge.
5) It does not have any knowledge about the judgment and decree passed in OS.No.1226/2005 which was alleged to have been filed seeking for partition and separate possession of plaintiff's 4/7th share in the property measuring 4 acres in Sy.No.57/2 of Benniganahalli, Bengaluru.
6) It does not have any knowledge about the letter addressed by the father of the plaintiff to the plaintiff and 38 O.S.No.6086/2014 it is a concocted document and the plaintiff has not asserted existence of such letter in OS.No.1226/2005.
7) It was made known that the plaintiff was center specific about his family and did not bother about his parents or sisters and did not contribute any money but even love and affection.
8) It was informed that during the life time of the father of the plaintiff, the father of the plaintiff had invested his retirement benefits and savings in various real estate projects and had multiplied his wealth and had purchased the suit A property out of his own funds and the same is self acquired property.
9) The plaintiff has furnished the income statement of his father for the year 1996-97 which is of no consequence as the suit A property was purchased in the year 1993, 1994 and 2002. The father of the plaintiff has declared in his income Tax assessment regarding purchase of the suit A property as self acquired property and as such, the plaintiff cannot claim that he has contributed funds for purchase of the suit properties. 39 O.S.No.6086/2014
10) It is a blatant lie that the father of the plaintiff has gifted the suit properties to him. The plaintiff has not produced any gift deed or pleaded as to when such gift deed was executed in his favour. The suit properties were not purchased in his name. The suit properties were purchased by the father of the plaintiff in his individual name out of his own funds.
11) If at all the father of the plaintiff has taken the signatures on blank papers, the same had not been mentioned by the plaintiff as to, who such blank signed papers were used and if at all there is misuse of such papers. The averments regarding taking away of cash and jewelry by the 1st and 2nd defendants is unconcerned to the suit.
12) The execution of the GPA by the plaintiff in favour of his father and subsequent revocation of the same do not pertain to the suit properties.
13) The allegation as to the alleged fact that the father of plaintiff was suffering from Alzheimer disease and was not having mind of his own is denied. The father of the 40 O.S.No.6086/2014 plaintiff was hale and healthy from the year 1999 and lived till 15.04.2014.
14) The original suit by the plaintiff for partition against his father and sisters discloses that apart from Benniganahalli property there was no property belonging to the joint family where the plaintiff had semblance of right, title or interest. Hence, he has not included the suit properties in the said suit and plaintiff was aware that the suit properties were the self acquired properties of his father. The judgment and decree passed in the said suit has no baring to the present suit.
15) The allegation of the plaintiff regarding the violation of Court order by the 1st and 2nd defendants, he should have taken appropriate action. But the mere allegation in this plaint is of no use or concerned to it.
16) The allegations in respect of leasing the Benniganahalli property, the rents received and non payment of sale consideration to the plaintiff under the agreement of sale dated 05.02.1999 are not within its knowledge.
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17) The execution of the 3 gift deeds dated 11.03.2003 and 02.03.2005 in respect of 1/14 th share each of Benniganahallil property and 3/14 th share jointly in favour of the 1st and 2nd defendants by their father and the execution of release deeds dated 01.09.1999 and 17.09.1999 is not within its knowledge.
18) The fact that the 1st and 2nd defendants after receiving Rs.20 lakhs each from the plaintiff have obtained gift deeds allegedly gifting 1/7 th share each in Benniganahalli property without paying consideration to the plaintiff is not within its knowledge.
19) The father of the plaintiff has not placed the true and correct facts that the father of the plaintiff has acquired the suit A property out of his own funds under 3 sale deeds dated 16.08.1993, 25.02.1994 and 18.01.2002 and from the recitals of the said documents, it can be said that the suit A property was purchased by the father of the plaintiff out of his own funds and it is his self acquired property.
20) After the purchase, the father of the plaintiff had changed the katha to his name and had assessed the 42 O.S.No.6086/2014 property and paid taxes and enjoying the same as true and lawful owner. The father of the plaintiff has also declared the said property as his self acquired property in his income tax returns.
21) The plaintiff was residing in USA as claimed by him and he was away from his father, mother and sisters and did not take care of the needs of his parents. Out of love and affection, the father of the plaintiff had executed the gift deeds in favour of his daughters i.e. the 1 st and 2nd defendants. The recitals of the said gift deeds clearly disclose that the suit A property was the self acquired property of the father of the plaintiff and he was in possession and enjoyment of the same.
22) Only 50% undivided share, right, title and interest in the suit A property was conveyed under the said gift deeds in favour of the 1 st and 2nd defendants by their father. Subsequent to the gift deeds, the 1 st and 2nd defendants in order to have separate divisible property and to enjoy the same for better purpose have entered into partition deed dated 25.08.2006.
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23) In the partition deed, there crept some mistake in so far as the measurement of the property and as such, the 1st and 2nd defendants have entered into a rectification deed on 28.07.2008. They got changed the katha and assessed the property tax and paid the taxes up to date. The plaintiff has not objected for change of katha in the name of the 1st and 2nd defendants.
24) Therefore, the 1st and 2nd defendants have sold their respective suit B and C properties in its favour for valuable sale consideration under sale deeds both dated 25.05.2009. There crept a mistake in the said sale deeds in mentioning the measurement of the suit B and C properties and was rectified vide rectification deeds both dated 30.06.2009.
25) After the purchase of the property, it has amalgamated the suit B and C properties for the better use and enjoyment under the deed of Amalgamation dated 18.06.2009 and on the basis of amalgamation deed, has got changed the katha to its name and after assessment of the taxes by the Bruhath Bengaluru Mahanagara Palike has paid the tax.
44 O.S.No.6086/2014
26) All these facts were brought to the notice of the plaintiff by his father. The plaintiff in order to settle scores in respect of other properties, out of vengeance and to coerce the 1st and 2nd defendants has filed this suit against it.
27) The father of the plaintiff has executed the gift deeds way back on 13.12.2003 in favour of the 1 st and 2nd defendants and the plaintiff has sought declaration of the same as not binding on him in the year 2014 which is hopelessly barred by time and as such the suit is not maintainable and has to be dismissed in limine.
28) The plaintiff himself admitted that his father was a benami in respect of suit properties and it is pertinent to state that after the enactment of the Benami Transactions (Prohibition of the Right to Recover Property) 1988 came into force from 19.05.1998 and even on this legal ground the plaintiff is not entitled to any relief.
29) The plaintiff has claimed that he has filed the suit against his family members for partition in respect of joint family properties in OS.No.1226/2005 and in the said suit, the suit schedule property is not brought or claimed as 45 O.S.No.6086/2014 joint family property and as such it should be dealt that the suit properties in this suit are the self acquired property of their father.
30) The plaintiff is estopped from claiming the suit properties as the properties of his mother and himself. The plaintiff has not furnished even an iota of documentary evidence and as such the mere assertion in the plaint cannot be considered as gospel truth and relief sought in the suit cannot be bestowed upon the plaintiff.
31) It being the absolute owner of the suit properties and having valid title over the same and being in peaceful possession and enjoyment from the date of purchase cannot deprive of its right by grant of any temporary injunction as sought in the applications by the plaintiff and the plaintiff has not made out a prima facie case or even triable issues are raised, the discretionary relief of injunction cannot be granted to the plaintiff.
32) The plaintiff has filed the suit as chance of litigation and at the instance of the plaintiff the Court cannot restrain or curtail his absolute ownership over the suit properties. There is no sum and substance made out 46 O.S.No.6086/2014 by the plaintiff to maintain the suit. Hence, prayed to dismiss the suit with exemplary costs in the interest of justice and equity.
5. On the above said pleadings of the parties, my learned predecessor in office has framed following issues.
1. Whether the plaintiff proves his right and title in respect of suit "B" and "C" schedule properties?
2. Whether the plaintiff is entitled for the possession of suit "B" and "C" properties?
3. Whether the plaintiff proves that the gift deed dated 30.12.2003 executed by late Sri.T.Ramachandra Reddy in favour of the 1st defendant gifting 50% undivided share in "A" schedule property and gift deed dated 30.12.2003 executed by late Sri.T.Ramachandra Reddy in favour of the 2nd defendant gifting 50% undivided share in the "A" schedule property are illegal, void and not binding upon him and the same are liable to be canceled?
4. Whether the plaintiff proves that the partition deed dated 25.08.2006 executed by the 1st and 2nd defendants partitioning the "A" schedule property is illegal, void and not binding upon him and the same is liable to be canceled?
5. Whether the plaintiff proves that the two sale deeds dated 25.05.2009 executed by defendant Nos.1 and 2 in favour of 3rd defendant in respect of suit "B" and "C" schedule properties respectively are illegal void and not binding upon him and they are liable to be canceled?
6. Whether the plaintiff proves the alleged act of the defendants as contended by him in the plaint? 47 O.S.No.6086/2014
7. Whether the defendant Nos.1 and 2 prove the contents of para No.6 to 10 of their written statement?
8. Whether the defendants Nos.1 and 2 prove that the WILL dated 17.01.1998 is false, forged and fabricated document and got up by the plaintiff in collusion with certain interested persons?
9. Whether the defendant No.3 proves the contents of para No.22 to 28 of his written statement?
10. Whether the defendants prove that the suit of the plaintiff is hopelessly barred by limitation?
11. Whether the defendants Nos.1 and 2 prove that the plaintiff has not properly valued the suit and the court fee paid by him is insufficient?
12. Whether the plaintiff is entitled for the reliefs as sought by him?
13. What order or decree?
6. To prove the above said issues and to substantiate their respective contentions, the plaintiff got examined himself as PW-1. Got exhibited 42 documents as Ex.P-1 to P-42 and closed his side.
7. In support of their defence, the authorized person/the managing partner of the 3 rd defendant has stepped into the witness box as DW-1. Got exhibited 10 documents and closed its side.
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a) The 1st defendant herself is examined as DW-2. Got exhibited 6 documents and in the course of cross examination of plaintiff/PW-1, 2 documents were confronted and got exhibited. Thus, got 8 documents and closed their side.
8. Heard both the sides on merits of the case.
a) In addition, the respective counsels for the plaintiff and the 3rd defendant have filed their written synopsis of arguments.
b) The learned counsel for the plaintiff has placed reliance on the following citations:
1. (2004)9 SCC 468 (para 12, 13 and 14)
2. AIR 1961 Mad 190 (head Note)
3. (2014)4 SCC 196
4. AIR 1985 Mad 321
5. AIR 2006 Raj 152
6. AIR 1989 HP 51
7. AIR 1973 Mysore 338
8. Manu/TN/0685/1996
9. MANU/H/0223/2010
10. AIR 1962 Pat 168
11. AIR 1929 PC 3
12. AIR 1985 P&H 315
13. MANU/DE/1381/2001
14. MANU/HP/1267/2014
15. AIR 1975 ALL 259
16. AIR 1972 HP 117
17. AIR 1984 HP 11
18. AIR 1951 HP 54
19. MANU/KA/1458/2017 49 O.S.No.6086/2014
20. MANU/KA/1674/2018
21. MANU/KA/1869/2016 and
22. MANU/KA/0749/2010.
c) He has also placed reliance on the following additional citations.
1. (1999) 3 SCC 457
2. AIR 1977 SC 409
3. (2003) 8 SCC 319
4. AIR 1994 SC 853 and
5. (1970) 3 SCC 716
d) On the other hand, the learned counsel for the 1 st and 2nd defendants relied on the following citations:
1. AIR 2007 SC 1721 and
2. AIR 1959 SC 443.
e) I have carefully gone through the written synopsis filed by the respective counsels for the plaintiff and the 3 rd defendant and also the above noted decisions on which the respective counsels have placed their reliance and perused the record.
9. My findings on the above issues are as answered as under;
1. Issues Nos.1 to 6 and 12 : Affirmative.
2. Issues Nos.7 to 11 : Negative.
3. Issue No.13 : As per the final order for the following reasons.
REASONS 50 O.S.No.6086/2014
10. ISSUES Nos.1, 7 AND 8:- As these issues require common discussions, to avoid repetitions and for the sake of convenience they are taken together for consideration.
11. It is the case of the plaintiff that he is the absolute owner of the suit B and C properties. His pleadings reveal that he claims his ownership over these properties on two modes i.e.;
a) these properties were purchased by his father out of the money belonged to him and his mother which was bequeathed in his favour by his mother by virtue of the registered WILL dated 17.01.1998/Ex.P-1 and
b) also by virtue of the registered WILL dated 17.01.1998/Ex.P-3 executed by his father along with other properties.
12. On the other hand, the defence is that these properties are the self acquisition of the father of the plaintiff and the alleged WILL dated 17.01.1998/Ex.P-3 is a false, forged and created document.
13. The pleadings of the parties demonstrate that; 51 O.S.No.6086/2014
a) one Sri.T.Ramachandra Reddy and Smt.Kamala Reddy are the husband and wife;
b) they have had 4 children i.e., Smt.Padma Chandrashekhar, Sri.R.Rajashekar/the plaintiff, Smt.T.R.Nirmala/the 1st defendant and Smt.T.R.Gemini/the 2nd defendant; and
c) Sri.T.Ramachnadra Reddy was a central government employee and was retired on 30.06.1986 as Station Partner, All India Radio, Bengaluru.
14. It is the case of the plaintiff that his maternal grandfather late Sri.M.Munivenkatappa had executed a gift deed dated 25.09.1966 in favour of himself and his mother in respect of Benniganahalli property.
15. Ex.P-22 is the certified copy of the agreement of sale dated 05.02.1999 executed by the father of the plaintiff as the GPA holder of the plaintiff in favour of the 1st defendant. This document is not disputed by the 1 st and 2nd defendants. On the other hand, it is their case that this sale agreement was executed when the GPA executed by the plaintiff in favour of their father was in force. 52 O.S.No.6086/2014
16. It is stated in para No.1 of Ex.P-22 that the vendor therein i.e., the plaintiff herein is the owner of 2 acres of land out of 4 acres of land described in the schedule A therein (which is nothing but the Benneganahalli property) having been acquired under the registered gift deed dated 25.09.1966 executed by his maternal grandfather Sri.Munivenkatappa.
17. So, it is clear that the Benniganahalli property was originally belonged to the maternal grandfather of the plaintiff who gifted the same jointly in favour of the plaintiff and his mother. Thus, the plaintiff is the joint owner of the Benniganahalli property along with his mother.
18. It is also in para No.2 of Ex.P-22 that the vendor i.e., the plaintiff has invested the said 2 acres of land as his share in the partnership business of M/s Kamala Industries which was setup by him along with his mother and 3 sisters.
19. It is in the cross examination of the 2 nd defendant/DW-2 at page No.25 in the beginning that too by way of admission that in the year 1981, they i.e., all the four children entered into a partnership deed with their 53 O.S.No.6086/2014 mother and in the same year, Benniganahalli property was leased to M/s Madura Coats Company and all of them entered into the lease agreement and it is stated in the said lease agreement that their mother and the plaintiff are entitled to 2/7th share each and the daughters are entitled for 1/7th share each.
20. To the question that in Ex.P-1 (i.e., the certified copy of the WILL dated 17.01.1998 executed by their mother) the lease agreement with Madura Coats Company is referred, she has answered that she has no idea. However, she has admitted the suggestion that Madhura Coats Company was tenant till 2004 and paying rent regularly and she was receiving Rs.68,000/- towards rent of her 1/7th share.
21. In Ex.P-1, it is stated that the executor i.e., the mother of the plaintiff has 2/7 th share in the immovable property bearing No.85 old Madras Road, Bengaluru (i.e., the Benneganahalli property) which is presently leased to M/s Madhura Coats.
22. As noted above, even the 1st defendant has stated that "she has no idea", she has not even denied the 54 O.S.No.6086/2014 suggestion that the lease of Benniganalli property with Madhura Coats is referred in Ex.P-1 and did not depose anything voluntarily (as she did in her entire cross examination to support their defence whenever she felt it necessary) even they have denied the WILLs alleged to be executed by their parents. But, as noted above, Ex.P-1 reflects the above said admitted lease.
23. At this stage, it is also pertinent to note that in Ex.P-26 to 28 i.e., the certified copies of the registered gift deeds all dated 11.03.2003 executed by the father of the plaintiff in favour of his all the three daughters bequeathing 1/14th undivided share in the Benniganahalli property (which are the documents admitted by the 1 st and 2nd defendants and the contents therein are similar to each other except the names of the donees), it is stated in para No.1 at page No.3 that 2 acres each in Sy.No.57/2A and 57/2B (i.e., Benniganahalli property) were got converted under separate orders.
24. The said orders are also referred in Ex.P-23 to 25, the certified copies of the release deeds dated 11.03.1999, 11.03.1999 and 17.03.1999 executed by all the three 55 O.S.No.6086/2014 daughters in favour of their father relinquishing their 1/7 th share each in the Benniganahalli property. These release deeds are also referred in the gift deeds at Ex.P-26 to 28.
25. At this stage itself, it is pertinent to note that even the 1st and 2nd defendants have denied the plaint averments that they had received Rs.20,00,000/- each and relinquished their 1/7th share in Benniganahalli property, the 1st defendant/DW-2 in the last para at page No.20 of her cross examination has admitted that those release deeds i.e., Ex.P-23 to 25 are referred in the gift deeds at Ex.P-26 to 28 and in para No.1 at page No.26, she has admitted the suggestion that in pursuance of Ex.P-24 and 25, they received Rs.20,00,000/- each.
26. It is also mentioned in para No.2 at page No.2 of Ex.P-26 to P-28 that originally Smt.Kamala Reddy (the mother of the plaintiff), Sri.R.Rajashekar (plaintiff), Smt.Padma Chandrashekar, T.R.Nirmala (the 1st defendant) and Smt.Gemini (the 2 nd defendant) were the co owners of the schedule property therein i.e. the Benniganahalli property.
56 O.S.No.6086/2014
27. It is also mentioned there in Ex.P-26 to 28 at para No.3 in page No.2 that Smt.Kamala Reddy and Sri.R.Rajashekar/the plaintiff had 2/7th share each in the said property and other three persons i.e. the daughters had 1/7th share each in the above property.
28. So, it can be safely concluded that the plaintiff and his mother got divided their respective half share in the Benniganahalli property gifted by his maternal grandfather; got them converted separately; then entered into a partnership called as Kamala Industries consisting of plaintiff, his mother and all the three sisters and then through the partnership entered into a lease agreement with Madhura Coats Company which was in force since 1981 till 2004 and the share of rent in the lease was, for the plaintiff and his mother, it was 2/7 th share each and for the sisters of the plaintiff, it was 1/7 th share each. The quantum of rental income was Rs.68,000/- towards 1/7 th share.
29. As noted above, there is no mention in the above documents and in the oral evidence as well as in the 57 O.S.No.6086/2014 pleadings as well that the father of the plaintiff had share either in Benniganahalli property or in the rental income.
30. Of course, it is mentioned in para No.2 at page No.3 in Ex.P-26 to 28 that during her life time, Smt.Kamala Reddy executed a WILL bequeathing her 2/7 th share in the entire property of 4 acres of land in favour of her husband Sri.P.Ramachandra Reddy for life time and after his life time, the same shall go to her son Sri.R.Rajashekar. Smt.Kamala Reddy expired on 06.07.1998 and after her death, her husband acquired right, title and interest for life in the above properties i.e., the Benniganahalli property to the extent of 2/7th share.
31. But, no such WILL is on record produced by either of the parties and there is no such mention in Ex.P-
1. On the other hand, it is specifically stated in Ex.P-1 that " ...... my above said wife (it appears that due to oversight, it is written as wife instead of husband as the person referred above in the said document is the "husband" and not the "wife" and in the later part, observed below, the person referred is also the "husband") is not in need and that therefore, I do not provide any more to my said 58 O.S.No.6086/2014 daughters and anything to my husband under this will and testament ....".
32. Moreover, the 1st defendant/DW-2 in her cross examination at the end of page 29 to the question that her father had no share in the rental income of Benniganahalli property, she has answered that on demise of her mother, her share went to her father. To the next question that on what basis, she is saying so, she has answered that "since they are husband and wife". She did not say anything with regard to the WILL referred in Ex.P-26 to 28 and there is no pleading as well in that regard by any of the parties.
33. On the other hand, it is the specific case of the plaintiff that except the pension, his father had no other source of income and as per the statement of income of his father for the year ending 31.03.1997, his father's annual income was Rs.28,428/- and to substantiate the same, he has also produced the above stated statement at Ex.P-13 which is prima facie in support of his aversion.
34. Of course, the 3rd defendant as noted above, has pleaded that it was informed to it that during his life time, the father of the plaintiff had invested his retirement 59 O.S.No.6086/2014 benefits and savings in various real estate projects and had multiplied his wealth.
35. This fact is not at all pleaded either by the plaintiff or by the 1st and 2nd defendants who are the best persons to say, being his children. It is also pertinent to note that the contesting 1st and 2nd defendants also did not whisper anything either in their written statement or the 1 st defendant/DW-2 in her evidence about the alleged investments by their father and multiplying his wealth.
36. However, to substantiate its above pleading with regard to the income/source of income/quantum of income of the father of the plaintiff, the 3rd defendant has not let in any supportive evidence. It is also important to note that it is not the pleading of the 3 rd defendant that the father of the plaintiff had rental income.
37. For that matter, it is also not the pleadings of the 1st and 2nd defendants that their father either had independent share in the rental income or was entitled for the share of their mother either because of the WILL referred in Ex.P-26 to 28 or by any other mode and he had 60 O.S.No.6086/2014 been receiving the share of the rental income of their mother.
38. On the other hand, it is their pleadings that the 2nd defendant who was having sufficient funds was also putting the funds to her parents and the 1 st defendant had placed all her earnings into the hands of her parents. Hence, their parents were not depending on the plaintiff and were leading comfortable life.
39. It is also their pleadings that their father retired from service as a Senior Class-I Officer of the Central Government during 1986. In addition to the service benefits, he used to get fabulous amount by way of pension every month and had plenty of money at his own for the acquisition of the schedule A-1, A-2 and A-3 properties.
40. Admittedly, they have not produced any document to substantiate the above pleadings with regard to the source of income either they had and handing over of their earning to their parents in particular to their father or with regard to the service benefits and the fabulous amount by way of pension every month their father had. 61 O.S.No.6086/2014
41. On the other hand, in her cross examination at page No.17, the 1st defendant/DW-2 has deposed that she and 2nd defendant are BA graduates and she is not working. It is also in her cross examination at page No.53 that 2nd defendant was never working. It is also at page No.36 at 3rd line that prior to Ex.P-5/the gift deed in respect of the suit B property, she did not own any property.
42. In page No.33, to the last question that there is no document to show that their father purchased schedule A-1 to A-3 properties out of the funds from his account, the 1st defendant/DW-2 has answered that he had other source of income. She has also deposed that he/their father had agricultural income out of the lands in his village.
43. To the next question that can she produce any such documents, she has answered that "as of now she cannot". But, even subsequently, she has not produced any such documents. It is also important to note that there is no pleading as well with regard to the agricultural income if any of their father had.
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44. At page No.34, in the middle, in her cross examination, the 1st defendant/DW-2 to the question that as per Ex.P-13, as on 31.03.1997, the income from the source is Rs.3,000/-, she has answered that he/their father had income but she has not produced any such documents.
45. On the other hand, in her earlier cross examination at page No.23 at the end, she has admitted the suggestion that their father was a central government employee and was retired as Station Partner of All India Radio on 30.06.1986 and at page 24, in the beginning, she has admitted the suggestion that during his life time, their father, apart from the above job, was not involved in any other job and as per Ex.P-13, their father's annual income was Rs.28,428/-.
46. It is also important to note that it is an admitted fact and evident on record that there were joint accounts maintained in Canara Bank, Indiranagar Branch, Bengaluru to which the rental income was being credited. It is an admitted fact and evident on record that the Savings Bank Account No.16288 belongs to the plaintiff 63 O.S.No.6086/2014 16287 belonged to his mother which later transferred into the name of his father and the independent bank account of his father is Savings Bank Account No.166808.
47. The certified copies of the above Savings Bank Accounts pertain to the plaintiff, his father and mother are at Ex.P-29, 31 and 33 respectively. Ex.P-30, 32 and 34 are the certificates issued by the concerned Bank Manager which demonstrate that the bank accounts of the plaintiff, his father and the mother respectively at Ex.P-29, 31 and 33 were opened on 20.08.1987, 19.01.2004 and after her death, the bank account of the mother of the plaintiff was continued in the name of his father from 28.08.1998 wherein the bank accounts of the plaintiff and his mother were the joint account with the father of the plaintiff. These documents at Ex.P-29 to 34 are not disputed by the 1 st and 2nd defendants and 3rd defendant pleaded its ignorance with regard to the internal family transactions.
48. It is in the cross examination of the 1 st defendant/DW-2 at page No.30 to the question that from February-2004, the share of their mother in the rental income was being credited to the personal account of their 64 O.S.No.6086/2014 father, she has answered that "yes, the rental agreement was renewed". It is important to note that the suggestion is that "the share of their mother in the rental income" and the same is admitted by the 1st defendant/DW-2 and she did not say that it is the share of their father on demise of their mother.
49. The alleged renewed lease agreement is admittedly not produced by any of the parties. However, the 1st defendant/DW-2 has not deposed that their father had entered into the alleged renewed lease agreement in his independent capacity.
50. It is also important to note that in the same page at the beginning of her cross examination, the 1 st defendant/DW-2 has admitted that as on January-2004, the balance in the account of their father was Rs.500/- as per Ex.P-31.
51. At this stage, she has voluntarily deposed that they had to refund the advance amount to Madhura Coats Company. To the next question that how much was the advance, she has deposed that she has no idea and admittedly, they have not produced any document to 65 O.S.No.6086/2014 substantiate the alleged refund of advance amount to Madhura Coats Company.
52. On the other hand, in page No.32 at the middle of her cross examination, to the question that by the end of August-2007, the bank account of their father came to minimum balance, the 1st defendant/DW-2 has answered that the tenant were vacated and there were no rental income.
53. In the last para at page No.31 of her cross examination, denying the suggestion that the entries dated 08.06.2004, 07.07.2004, 09.09.2004, 03.02.2005 and 10.03.2005 at Ex.P-31 were the transactions made by their father on her compulsion and coercion to purchase jewelries, she has voluntarily deposed that those jewelries were purchased for the daughter of the plaintiff.
54. Admittedly, the account at Ex.P-31 is the independent account of the father of the plaintiff and admittedly, the rent amount of the share of his mother was credited to the said account from February-2004 and admittedly, the amount in the said account was the rental income.
66 O.S.No.6086/2014
55. So, a doubt arises in the mind of a prudent man, if really, the said rental income which was admittedly the share of the mother of the plaintiff if came to the share of the father of the plaintiff as stated by the 1 st defendant/DW-2, then what was the necessity or the reason for their father to make the above transactions for purchase of jewelries to the daughter of plaintiff that too when the plaintiff was disassociated with their family as contended by the 1st and 2nd defendants.
56. There is no explanation in the evidence of the 1st defendant/DW-2 in that regard. Hence, the preponderance of probabilities is much towards the aversion of the plaintiff that the 2/7th share of the mother of the plaintiff in the Benniganahalli property and the rental income there of was bequeathed in his favour.
57. So, if the above noted entire evidence on record is taken in a nut shell, it is clear that the father of the plaintiff was retired on 30.06.1986 and apart from the pension, he had no other source of income. On the other hand, the plaintiff had minimum rental income of 67 O.S.No.6086/2014 (Rs.68,000/- x 2) Rs.1,36,000/- in the joint account with his father since 1981.
58. There is no dispute with regard to the fact that the father of the plaintiff has purchased the suit A property under three separate registered sale deeds dated 16.08.1993, 25.02.1994 and 18.01.2002 for a valuable consideration of Rs.50,000/-, Rs.75,000/- and Rs.1,80,000/-. The certified copies of the same are on record at Ex.P-36 to 38.
59. As noted above, Ex.P-29 is the joint account of the plaintiff with his father which was admittedly, being operated by his father as his GPA holder. Of course, the 1 st defendant/DW-2 in her cross examination at page No.34 in the last para has denied the suggestion that the entry dated 18.01.2002 at Ex.P-29 reveals that on the instruction of the father of the plaintiff, their father withdrawn Rs.3,00,000/- and the sale consideration at Ex.P-38 i.e., towards the schedule A-3 property was borne by the said withdrawal.
60. The date of withdrawal and the date of the sale deed at Ex.P-38 probabilizes the said suggestions. 68 O.S.No.6086/2014 Moreover, the defence of the 1st and 2nd defendants is that during the year 1997, the plaintiff was a student studying BSC degree in Christ College, Bengaluru and he had no independent income of his own.
61. But, as noted above, it is in the cross examination of the 1st defendant/DW-2 that the lease agreement was entered into with Madhura Coats Company in the year 1981 and was in existence till 2004; the plaintiff has 2/7th share in the rental income and the 1 st defendant was receiving Rs.68,000/- towards her 1/7 th share and thus, the plaintiff admittedly should have rental income of Rs.1,36,000/- towards his 2/7 th share from 1981.
62. It is not the defence of the 1 st and 2nd defendants that the plaintiff has withdrawn his share of rental income on his own and utilized the same. On the other hand, it is in the cross examination of the 1st defendant/DW-2 that their father was operating the joint account on the instructions of the plaintiff.
63. Hence, it is clear that the rental income of the plaintiff was in the hands of his father who had no other 69 O.S.No.6086/2014 source of income than of his central government employment i.e., the salary and thereafter the pension. There is no evidence on record with regard to the quantum of salary he had till his retirement on 30.06.1986 and his annual pension as on 31.03.1997 was Rs.28,428/- as per Ex.P-13.
64. With regard to the aversion of the plaintiff that his father hold the property as benamidar, his counsel relied on the decision reported in AIR 1977 SC 409 (in Union of India (UOI) Vs Moksh Builders and Financiers Ltd & Ors. in Civil appeal Nos.1739 - 1740 of 1968 decided on 27.10.1976 before their Lordships M.Hameedullah Beg and P.N.Shinghal, JJ.) wherein he has drawn my attention to the observations of the Hon'ble Apex Court to the effect that;
" ..........
5. It was alleged in the plaint that the house was purchased by defendant No.3, "benami", in the name of his son defendant No.2, out of his "own funds drawn from his bank account" and that the "full beneficial ownership, right, title and interest in the said property has always belonged and continues to this day belong to the 3 rd defendant................
.................70 O.S.No.6086/2014
8. Defendant No.3 did not appear to contest the suit in spite of personal service and the trial court made an order on April 15, 1955 to proceed against him Ex-parte. Separate written statements were filed by the Company and defendant No.2.
................
10. Defendant No.2 filed a short written statement stating that he was the owner of the house having purchased it with "his own money". He pleaded that he had paid Rs.10,000/- by cheque on New Bank of India Ltd. New Delhi, and Rs.50,000/- were paid before the Sub- Registrar. He pleaded further that he had no knowledge of the Collector's order and that his order, if any, was exparte. As regards the Company defendant No.2 pleaded that it was a real and genuine Company and that out of his shares worth Rs.90,000/- he had sold shares worth Rs.74,000/-.
11. The trial Court found that the house was purchased "benami" in the name of defendant No.2 by defendant No.3 with his own money and that the sale of the house to the Company by defendant No.2, was "sham and was effected in order to defeat or to delay the creditor of defendant No.3 and that defendant No.1 had no real existence." The trial Court therefore granted a decree declaring that the sale deed dated: May 25, 1953 was void as against the plaintiff and all other creditors, if any of defendant No.3 and that the House" is and continues to be owned by the 3rd defendant and that the plaintiff is entitled to proceed against the said properties by way of attachment and sale to realize the tax arrears due from him. .........
...........
15. It is no body's case that the sale of the house to defendant No.2 was fictitious and that the title of the transferor was not intended to pass. What we have to examine is whether the title, on sale of the house in December 1946, was transferred to defendant No.3. who was the real purchaser, and not to defendant No.2, who was only the ostensible transferee and was no more than a "benamidar". It has been held in Gangadara Ayyar and ors.71 O.S.No.6086/2014
Vs Subramania Sastrigal and ors. MANU/FE/0012/1948 that " in a case where it is asserted that an assignment in the name of one person is in reality for the benefit of another, the real test is the source whence the consideration came." It is also necessary to examine in such cases who actually has enjoyed the benefits of it is also necessary to examine in such cases who actually has enjoyed the benefits of the transfer. Both these tests were applied by this Court in Meenakshi Mills, Madurai Vs. The Commissioner of Income Tax Madras.
MANU/SC/0044/1956 : (1956) S.C.R. 691 It is therefore necessary in the present case, to find out the source of the consideration for the transfer, as also to find out who has been in enjoyment of the benefits of the transaction. It is equally well settled that, although the onus of establishing that a transaction is 'benami' is on the plaintiff, 'where it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts."
16. The burden of proof is, however not static, and may shift during the course of the evidence. Thus while the burden initially rests on the party who would fail if no evidence is led at all after the evidence is recorded, it rests upon the party against whom judgment would be given if no further evidence were adduced by either side i.e. on the (evidence on record. As has been ..........
..............
27. It would thus appear that the finding of the trial court on issue No.1 which dealt with the question whether the house was purchased by defendant No.3 "benami" in the name of defendant No.2, was correct and should be restored as the High Court's finding to the contrary has been vitiated by the substantial errors of law mentioned above."
65. In the present case on hand also, as noted above, the suit A property consisting of the suit B and C 72 O.S.No.6086/2014 properties was purchased by the father of the plaintiff in his name out of the income of the plaintiff i.e. as a benamidar for the plaintiff and for his/plaintiff's benefit and thus, the dictum laid down in the above case is in support of the case of the plaintiff.
66. Therefore, from the facts and circumstances of the case and on the evidence on record observed above as well as in the light of the dictum rendered in the above noted case, it is clear that the preponderance of probability is much towards the case of the plaintiff that the suit A property consisting of the suit B and C properties were purchased out of his income than the defense that the suit A property is the self acquisition of the father of the plaintiff.
67. The plaintiff has also averred that he is the owner of the suit A property by virtue of the WILL dated 17.01.1998 executed by his father. On the other hand, it is the defence that the said WILL is a false, fabricated and created document.
68. To substantiate his case with regard to mode of acquisition of the suit properties by the WILL dated 73 O.S.No.6086/2014 17.01.1998 executed by his father, apart from his oral evidence and production of the certified copy of the said WILL at Ex.P-3, the plaintiff did not let in any evidence.
69. With regard to this issue, it is in the written arguments of the counsel for plaintiff that the defendant contends that the burden of this issue should be on the plaintiff and the said contention is wholly misplaced for the reasons that;
a) in para No.5 of their written statement, the 1 st and 2nd defendants specifically took the defence that the WILLs are forged, fabricated, false documents and created by the plaintiff in collusion with certain interested persons and
b) as per Section 106 of the Indian Evidence Act, 1872, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Since, it is the specific defence of the 1 st and 2nd defendants, this issue is framed.
c) While framing this issue, this Court has also considered the previous litigation between the parties in OS.No.1226/2005 and the nature of defence raised by the 74 O.S.No.6086/2014 defendants in their respective written statements and thus, the question of proving the WILLs first does not arise.
d) The parties have led the evidence keeping in mind the issues framed by this Court. The conduct and the mindset of the defendants also show the same. Hence, after the trial, the defendants cannot now turn around contrary to their conduct.
70. There is no dispute that the 1st and 2nd defendants have specifically pleaded that the WILLs alleged to be executed by their parents in favour of the plaintiff are false, fabricated and created documents by the plaintiff and under Section 106 of the Evidence Act, the burden of proving the fact is upon the person who asserts it and accordingly, issue No.8 is framed.
71. But, it is important to note that the WILL involved in the above suit i.e., OS.No.1226/2005 is the WILL executed by their mother/Ex.P-1 and it is seized in RFA.No.1062/2012 before the Hon'ble High Court of Karnataka, Bengaluru and there is an order of stay of execution of the decree as well. Admittedly, the WILL 75 O.S.No.6086/2014 alleged to be executed by the father of the plaintiff/Ex.P-3 is not the subject matter of the above suit.
72. Even there is no issue framed specifically with regard to proving of the WILL at Ex.P-3, the same is indirectly involved in issue No.1 which is to the effect that;
1. Whether the plaintiff proves his right and title in respect of suit "B" and "C" schedule properties?
73. Admittedly, the plaintiff is claiming his right and title over the suit properties by virtue of the WILL at Ex.P-3 as well. Hence, the plaintiff cannot say that the contention of the defendants that the initial burden of proving the WILL at Ex.P-3 is on him is wholly misplaced.
74. Admittedly, the plaintiff has not produced the original WILL and he has produced only the certified copy of the same at Ex.P-3. It is his case that the original WILLs are with the 1st and 2nd defendants. But, the 1st and 2nd defendants, as noted above, have contended that the WILLs are false, fabricated and created documents and they have specifically contended that there is no such WILLs with them as averred by the plaintiff.
76 O.S.No.6086/2014
75. With regard to production of the certified copy of the alleged WILL at Ex.P-3 as the secondary evidence and its admissibility, the counsel for the 1 st and 2nd defendants has relied on the decision reported in AIR 2007 SC 1721 (between Smt.J.Yashoda vs. Smt.K.Shobha Rani in Appeal (Civil) 2060 of 2007 decided on 19.04.2007 by the Bench consisting of their Lordships Dr.Arijit Pasayat and Lokeshwar Sing Panta JJ.) wherein he has drawn my attention to the observations of the Hon'ble Apex Court to the effect that;
" Leave granted.
..........
Learned Single Judge held that .............. Photo copies cannot be received as secondary evidence in terms of Section 63 of the Act and they ought not to have been received as secondary evidence. Since the documents in question were admittedly photo copies, there was no possibility of the documents being compared with the originals. Accordingly, the Civil Revision was allowed.
Learned counsel for the ............. The judgment of the High Court stating that the requirement of Section 65(a) have not been fulfilled in this case and the High Court rightly held that the documents could not have been accepted as secondary evidence.
In order to consider .........
"63: Secondary evidence ........
65. Cases in which .......77 O.S.No.6086/2014
(a) when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it.
Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who fails to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents.
............
"After hearing the learned counself for the parties .... ...... According to clause (a) of Section 65 of Indian Evidence Act, Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the court of any person legally bound to produce it, and when, after the notice mentioned in Section 66 such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause(a) of Section 65, the appellant filed applications on July 4, 1973, before respondent No.1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed Photostat copy. ........ There was also no other material on the record to indicate the original document was in the possession of respondent no.1. ......... In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the share of the Photostat copy. We find no 78 O.S.No.6086/2014 infirmity in the above order of the High Court as might justify interference by this Court.
............."
76. But in the present case on hand, admittedly, Ex.P-3 is the certified copy issued by the concerned authority. So there should be the original of the said document. Of course the plaintiff has not produced the original and the 1st and 2nd defendants with whom the plaintiff alleges the originals are, have contended that no such original Wills are in their custody. So, in the peculiar facts and circumstances of the case which finds no place in the above decision, the dictum rendered in the above case is not applicable to the case on hand.
77. With regard to proof of the WILL, the counsel for 1st and 2nd defendants has relied on the decision reported in AIR 1959 SC 443 (between H.Venkatachala Iyengar vs B.N.Thimmajamma & Others decided on 13.11.1958 by the Bench consisting of his Lordship Gajendragadkar, P.B., J.) wherein he has drawn my attention to the observations of the Hon'ble Apex Court to the effect that;
"Act:79 O.S.No.6086/2014
Will - Mode of proof - Onus - Suspicious circumstances - Removal of such suspicion, if part of the initial burden on the propo - under - Indian Evidence Act, 1872 (1 of 1872) , SS.45, 57, 67, 68 - Indian Succession Act 1925 (XXXIX of 1925), SS. 59, 63.
Head Note:
The mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S.63 of the Indian Succession Act. Proof in either case cannot be mathematically precise and certain and so the test should be one of satisfaction of a prudent mind in such matters. The onus must be on the propounder and in absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus.
Where, however, there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the will can be accepted as genuine. If the caveator alleges undue influence, fraud or coercion the onus will be on him to prove the same. Where ......
What are suspicious circumstances must be judged in the facts and circumstances of each particular case. If the propounder takes a prominent part in the execution of the will which confers substantial benefits on him, that itself is a suspicious circumstances attending the execution of the will and in appreciating the evidence in such a case, the court should proceed with an open but nevertheless vigilant and cautious mind.
.......
In the instant case the appellant, as the sole executor to a will, brought the suit out of which the appeal arises, for a declaration that the testatrix was the owner of certain properties and was as such entitled to dispose of them by the will and asked for consequential reliefs purporting to 80 O.S.No.6086/2014 give effect to the bequests made by her. It appeared from the evidence that the appellant took a prominent, if not a decisive part in the execution of the will, which contained substantial bequests in favour of his sons. But there was no evidence to show how that the draft was ever approved by the testatrix or that the will was fully read out to her and she knew its contents. The trial Court decreed the suit but the High Court was right in setting aside the finding of the trial Court that the will had been duly and validly executed. ..................
It would be convenient at this stage to refer briefly to the reasons given by the courts below in support of their respective findings. The learned trial Judge put the onus of proving the will on the appellant but he observed that 'the proof that is necessary to establish a will is not an absolute or a conclusive one.' ............
................
It would, therefore, be necessary at this stage to decide whether an execution of the will in the present case is surrounded by any suspicious circumstances. Does the will appear to be on the whole an improbable, unnatural and unfair instrument as held by the High Court? That is the first question which falls to be considered. We have already indicated that the preamble to the will contains many argumentative recitals. Indeed it would not be unjust to say that the preamble purports to meet by anticipation the main objections which were likely to be raised to the competence of Lakshmamma to make a will in regard to the properties covered by it. The preamble in great detail makes out a case that the properties received by the testatrix and her husband under the gift deed (Ex.D) devolved upon her by survivorship after her husband's death, a plea which has not been accepted even by the trial court. It also seeks to prove that the subsequent purchases made by her husband were in law the joint acquisitions of her husband and herself, a point on which the two courts below have differed. It sets out in detail the theory that the son of the testatrix has lost his right, title and interest in the properties which devolved on him after his father's death because he had alienated more than his share in the said properties during his lifetime; and it even suggests 81 O.S.No.6086/2014 that during his illness and to help him to build a house in Mysore the testatrix had advanced him money from her separate funds, pleas which have not been accepted by either court below. It seems to us that the elaborate and well considered recitals which have been deliberately introduced in the preamble cannot possibly be the result of corresponding instructions given by the testatrix to the appellant for preparing the draft of her will. In the context these recitals sound artificial and unnatural and some of them at any rate are untrue. The draftsman of the will has tried to be overwise' and that itself is a very serious infirmity in the appellant's case that the (1) Williams on "Executors and Administrators"....
..................
According to the decisions in ............ It was tried on six issues. The first four issues referred to the sound and disposing state of the testator's mind and the fifth to his knowledge and approval of the contents of the will. The sixth was whether the testator knew and approved of the residuary clause; and by this last clause the propounders of the will were made the residuary legatees and were appointed executors. Evidence was led at the trial and the judge asked the opinion of the jurors on every one of the issues. The jurors found in favour of the propounders on the first five issues and in favour of the opponents oil the sixth. It appears that no leave to set aside the verdict and enter judgment for the propounders notwithstanding the verdict on the sixth issue was reserved but when the case came before the Court of Probate a rule was obtained to set aside the verdict generally and have a new trial or to set aside the verdict on the sixth issue for misdirection. ......
..........
In Sarat Kumari Bibi Vs. Sakhi Chand (2), the Privy Council made it clear that "the principle which requires the propounder to remove suspicions from the mind of the court is not confined only to cases where the propounder takes part in the execution of the will and receives benefit under it. There may be other suspicious circumstances attending on the execution of the will and even in such cases it is the duty of the propounder to remove all clouds and satisfy the conscience of the court that the instrument 82 O.S.No.6086/2014 propounded is the last will of the testator." This view is supported by the observations made by Lindley and Davey, L.JJ.in Tyrrell Vs. Painton (3)" The rule in Barry V.Sutlin (4) Fulton V. Andrew (5) and Brown V.Fisher (6) said Lindley,L.J." is not in my mind confined to the single case in which the will is prepared by or on the instructions of the person taking large benefits under it but extends to all cases in which circumstances exist which excite the suspicions of the Court.
............
The last case to which ...... should not have been granted to the respondent Hinkson. The Privy council did not accept this contention and dismissed the appeal. It was in dealing with the appellant's contention about the suspicions surrounding the execution of the will that Lord Du Parcq made the observations which we have already quoted. Prima facie the facts on which the appellant relied were strong enough; but the question which according to their Lordships fell to be decided in the appeal was whether the learned trial Judge's decision on the facts was erroneous and so manifestly erroneous that an appellate court ought to set it aside. Their Lordships then referred with approval to the principles which had been frequently enunciated as to the respect which the appellate court ought to pay to the opinion which a Judge who has watched and listened to the witness has formed as to their credibility (Powell v. Streatham Mano R Nursing Home (1). Their Lordships then briefly referred to the evidence led in the case and observed that it was impossible for them judging only from the printed page to decide between the various opinions of Mr.Hinkson's character which its perusal may leave open for acceptance by different minds. In the result they came to the conclusion in agreement with the Supreme court that the trial Court's decision on the facts must stand. It would thus be noticed that ..............
.........
In this connection we would like to add that the learned trial Judge appears to have misdirected himself in law inasmuch as he thought that the proof of the signature 83 O.S.No.6086/2014 of the testatrix on the will raised a presumption that the will had been executed by her. In support of this view the learned judge has referred to the decision of the Calcutta High Court in Surendra Nath Chatterji V.Jahnavi Charan Mukerji (1). In this case no doubt the Calcutta High Court has held that on the proof of the signature of the deceased or his acknowledgement that he has signed the will he will be presumed to have known the provisos of the instrument he has signed; but Mr.Justice B.B.Ghose, in his judgment, has also added that the said presumption is liable to be rebutted by proof of suspicious circumstances and that undoubtedly is the true legal position. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated. That inevitably would be a question of fact in each case. Unfortunately the learned trial Judge did not properly assess the effect of suspicious circumstances in the present case to which we have already referred and that has introduced a serious infirmity in his final conclusion. Incidentally we may also refer to the fact that the appellant obtained a power of attorney from the testatrix on the same day; and that has given rise to the argument that the appellant was keen on taking possession and management of the properties under his control even before the death of the testatrix. There is also another circumstance which may be mentioned and that is that the Sub Registrar, in whose presence the document was registered on the same day, has not been examined though he was alive at the date of the trial. On these facts then we are inclined to hold that the High Court was justified in reversing the finding of the trial Court oil the question of the due and valid execution of the Will.
(1) (1928) ILR 56 Cal.390 Before we part with this case, however, we would like to add that the High Court was not justified in recording its findings on two other issues in the present appeal. As we have already indicated, the High Court itself has observed that, once it was held that the will had not been proved by the appellant, no other issue survived for decision. Even so, the High Court has expressed its conclusions in favour 84 O.S.No.6086/2014 of respondent on the question about the character of the subsequent acquisitions of items 3, 4, and 5 and about the subsisting title of the testatrix in respect of all the properties covered by the will. Having regard to the relationship between the parties it is difficult to understand how mere entries in the revenue record made in the name of Sadagopalachar or the long possession of Sadagopalachar and, after his death of Narayana Iyengar can prove the transfer of Lakshmamma's title or its extinction by adverse possession respectively. It is apparent that, in recording ........ "
78. The plain reading of the above decision prima faice reveals that it is on the points to be considered where the suspicious circumstances alleged in case of a WILL. But admittedly, in this case the defense is total denial of the alleged WILLs at Ex.P-1 and P-3. There is no contentions raised by the 1st and 2nd defendants that the alleged WILLs are surrounded by the suspicious circumstances and thus, the dictum rendered in the above decision is not helpful to the 1st and 2nd defendants.
79. However, in the present case on hand, as noted above, the plaintiff has not chosen to examine any of the attesting witness to the WILL at Ex.P-3 which is mandatory under law i.e., Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act. Hence, the plaintiff has failed to prove his right and title over the suit 85 O.S.No.6086/2014 B and C properties by virtue of the WILL dated 17.01.1998/Ex.P-3 alleged to be executed by his father.
80. At the same time, the 1st and 2nd defendants even have contended that the WILLs are false, fabricated and created documents, except the oral evidence of the 1 st defendant/DW-2, they did not let in any other supportive evidence either oral or documentary to substantiate the same.
81. On the other hand, it is pertinent to note that it is the defence of the 1st and 2nd defendants that the plaintiff was not heeding to the advice of their parents for his upcoming and he was out of Bengaluru from 1987 and out of India from July 1989 and virtually, he became a stranger to the family and did not take care of either the parents or his siblings or any member of the family
82. But, it is pertinent to note that the admitted GPA executed by the plaintiff in favour of his father at Ex.P-14 is dated 03.07.1998 and it is in the cross examination of the 1st defendant/DW-2 in the last para at page No.22 that too by way of admission that under Ex.P-14/the GPA., the plaintiff has authorized their father to collect 2/7 th share of 86 O.S.No.6086/2014 the rental income from the Benniganahalli property and also to manage/operate his bank accounts.
83. At this stage, it is apt to note that it is in the cross examination of the plaintiff/PW-1 that the GPA at Ex.P-14 was the absolute GPA. The plain perusal of Ex.P- 14 is in support of the above evidence of the plaintiff/PW-1 as the absolute right to act on his behalf in respect of his share in the Benniganahalli property was given to his father.
84. It is also important to note that in her cross examination at page No.23 in the beginning, the 1 st defendant/DW-2, to the suggestion that in the year 1993, the plaintiff was at Bombay, she has deposed that "she does not know". To the next question that their father was in continuous touch with the plaintiff through letters, she has answered that "she does not know". To the question that Ex.P-11 is one of the letters written by their father expressing love and affection to the plaintiff, she has answered that "she does not know".
85. It is pertinent to note that she does not deny all the above suggestions. On the other hand, at page No.55 of 87 O.S.No.6086/2014 her cross examination, at para No.2, she has admitted the suggestion that the plaintiff and his father were in frequent touch through the letters and in para No.3, she has admitted the suggestion that Ex.P-11 is signed by their father and on her admission, the said signature is exhibited at Ex.P-11(a).
86. In the next para i.e., at para No.4, even she has denied the suggestion that in the year 1986, their father purchased property in HRBR Layout out of the funds of the plaintiff, to the next question that in Ex.P-11, their father has stated that the plaintiff can work out to construct his house on HRBR property, she has answered that "it may be".
87. The plain reading of Ex.P-11 demonstrates that the father of plaintiff asked the plaintiff to make a request to his employer for transfer to Bengaluru branch from Bombay branch, whereby the plaintiff may be happy in his native and the same will make them easy to manage the properties, to have enjoyable family life, to plan/prepare to construct his/plaintiff's own house on HRBR property; however, if he/plaintiff wishes, to continue at Bombay 88 O.S.No.6086/2014 branch only. Ex.P-11 is dated 25.08.1993. So, the recitals at Ex.P-11 are in support of the plaintiff.
88. At this stage, it is also pertinent to note that in the cross examination of plaintiff on 16.10.2019, the photo of the plaintiff taken at the time of his marriage and the letter he has written to his father were confronted and on admission, they are exhibited as Ex.D-17 and 18 respectively.
89. The 1st defendant/DW-2 in her cross examination in para No.2 at page No.55 has deposed that to show that the plaintiff was not co-operating and creating much stress in the family, they gave Ex.D-17 and 18 to their counsel to confront them to the plaintiff.
90. It is in the cross examination of the plaintiff/PW- 1 at para No.2 in page No.61 that the said photograph at Ex.D-17 was taken before his marriage and he has admitted the suggestion that the girl appearing in the photo at Ex.P-17 is his niece i.e, the daughter of the 2 nd defendant. The plain perusal of Ex.D-17 shows that it was taken while the niece garlanding the groom. 89 O.S.No.6086/2014
91. At this stage, it is also apt to note that before confronting the above photo and letter, in page No.60 at the last para, it is elicited by the plaintiff/PW-1 in his cross examination that he married on 19.01.2000 and it is got admitted that it was/the marriage was after the demise of his mother; all the pre marriage functions were performed by his father in his house and after his marriage, he stayed in the house of his father for five months.
92. The plain reading of the letter at Ex.D-18 demonstrates that the plaintiff has expressed his feeling/frustration i.e., he felt that he was an unwarranted child of their parents; expressing the fact that his parents are interested to get his marriage done with the girl of their choice, but he is interested to marry the girl of his own choice and he has also named the girl of his choice in the said letter and expressed his opinion that he does not want to destroy the life of a girl just to see his father's dreams come true; because of his father's attitude, his sister Nirmala is suffering and he does not want any other girl to suffer like her; even at his age of 36, he could not marry; 90 O.S.No.6086/2014 his father suspects him and used his own sisters to spy on him etc.
93. But, Ex.D-18 is dated 06.07.1992. As noted above the date of marriage of the plaintiff is 19.01.2000 i.e. after around 8 years, and all the pre-marriage function was performed by his father in his house and after the marriage, the plaintiff stayed there for 5 months. It is also apt to note that Ex.P-11 which is the letter written by the father of plaintiff is dated 25.08.1993 i.e., subsequent to the letter at Ex.D-18.
94. Moreover, it is also in the cross examination of the 1st defendant/DW-2 in para No.2 at page No.27 that their father was operating the joint account on the GPA at Ex.P-14 and at this stage, she has voluntarily deposed that it was on the instructions of the plaintiff. To the question that the entries dated 17.12.1999, 18.01.2000, 19.01.2000 and 12.08.2000 at Ex.P-29 are the withdrawals for shopping of sarees and jewelries, she has answered that they were for the marriage of the plaintiff.
95. Moreover, as noted above, the 1st defendant/DW- 2 has voluntarily deposed that the entries dated 91 O.S.No.6086/2014 08.06.2004, 07.07.2004, 09.09.2004, 03.02.2005 and 10.03.2005 at Ex.P-31 i.e., the purchase of jewelries were for the daughter of the plaintiff.
96. In page No.32, to the 1st question that their father had love and affection towards the plaintiff, the 1 st defendant/DW-2 has answered that he/their father had love and affection towards all his children.
97. Despite of the above answer, in the same page at the end, she has denied the suggestion that since she was misusing the GPA in favour of their father, the plaintiff was forced to revoke the GPA and has voluntarily deposed that it was revoked by their father since the plaintiff misbehaving with their father and disrespecting him.
98. To the next question that no such recitals are forthcoming in Ex.P-16 with regard to the reason she has voluntarily stated, she has deposed that their father did not feel it necessary. So, admittedly, there is no such reason in fact stated in the document.
99. Moreover, the revocation deed at Ex.P-15 is dated 21.08.2003 and the above transactions for purchase of jewelries alleged to be for the daughter of plaintiff are all of 92 O.S.No.6086/2014 the year 2004 and 2005. So, a question arises in the mind of a prudent man that if really, the plaintiff was misbehaving and disrespecting his father, then why his father purchase the jewelries for the daughters of the plaintiff. Hence, it is clear that either of one is false.
100. So, if the entire evidence on record is taken in a nut shell, it is clear that even as per the letter at Ex.D-18, there are some differences of opinion between the parents rather the father of the plaintiff and the plaintiff with regard to choice of the bride for the marriage of the plaintiff and the delay caused in performing the marriage of the plaintiff, in the passage of time, the same came down; the marriage of the plaintiff was performed by his father only; his father had equal love and affection towards all the children.
101. At this stage, it is also pertinent to note that even Ex.P-1 is under challenge before the Hon'ble High Court of Karnataka, Bengaluru in RFA.No.1062/2012, nothing bars to see the recitals therein for the corroborative purpose. It is specifically stated in Ex.P-1 93 O.S.No.6086/2014 and for that matter in Ex.P-3 as well that their daughters were already been sufficiently provided.
102. As noted above, it is an admitted fact and evident on record that the Benniganahalli property was gifted by the maternal grandfather of the plaintiff jointly to the plaintiff and his mother alone wherein the plaintiff has 2 acres and his mother had 2 acres which were invested in the partnership firm called Kamala Industries wherein the 3 daughters were also made as partners and were given with 1/7th share each and the rental income of 1/7 th share i.e Rs.68,000/- from 1981 to 2004 and the same was relinquished for Rs.20,00,000/- under Ex.P-23 to 25 on 01.09.1999, 01.09.1999 and 17.09.1999.
103. Admittedly, Ex.P-1 and 3 both are dated 17.01.1998. So, in the back ground of the dates i.e., the period and the quantum of rent as well as the quantum of amount received to relinquish the said share, it appears that 1/7th share each given to the daughters can definitely be hold as sufficiently provided.
104. Moreover, as noted above, in the admitted documents at Exs.P-26 to 28, it is stated that their mother 94 O.S.No.6086/2014 Smt.Kamala Reddy executed a WILL bequeathing her 2/7 th share in the entire property of 4 acres of land in favour of her husband Sri.P.Ramachandra Reddy for life time and after his life time, the same shall go to her son Sri.R.Rajashekar i.e., the plaintiff.
105. So, if the entire evidence on record is taken in a nut shell, admittedly, the plaintiff is the only son who was out of house because of the job. There were differences with regard to the choice of bride for his marriage. Because of which there was delay and the plaintiff was frustrated rather was in bad mood with the parents. Out of the income of the plaintiff and his mother only, many a properties were purchased in the family and thus, they were all benami properties in hands of his father. The daughters were also provided sufficiently.
106. Therefore, the parents might have been thought to execute the WILLs (than any other documents of conveyance) bequeathing all the remained properties and the properties that might be purchased in future in favour of their son to settle his life peacefully by keeping cordial relationship with him.
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107. Hence, under the facts and circumstances of the case and the evidence on record, it cannot be said that the WILLs at Ex.P-1 and 3, particularly with regard to the present issues, Ex.P-3 i.e., the WILL dated 17.01.1998 executed by the father of the plaintiff in favour of the plaintiff is a false, fabricated and created document by the plaintiff in collusion with some interested persons.
108. It is also pertinent to note that it is well proposition of law, when fabrication, creation and collusion are alleged, they should be pleaded specifically and proved with cogent and corroborative evidence. But, the 1 st and 2nd defendants have failed to plead the same specifically and also to let the cogent and corroborative evidence in that regard.
109. Therefore, from the above discussions, even the plaintiff has failed to establish his case that he has right and title over the suit B and C properties by virtue of the WILL dated 17.01.1998 executed by his father/Ex.P-3, he is successful in establishing that his father had purchased the suit B and C properties out of his income and was 96 O.S.No.6086/2014 holding the same as benamidar for himself and for his benefit and thus, he has right and title over the same.
110. On the other hand, the defendants have failed to prove the defence that the suit properties are the self acquired properties of their father and the WILLs are false, fabricated and created documents by the plaintiff in collusion with some interested persons. Hence, issue No.1 is answered in affirmative; issues Nos.7 and 8 in negative.
111. ISSUES Nos.3, 4 AND 6:- As these issues require common discussions, to avoid repetitions and for the sake of convenience, they are taken together for consideration.
112. It is the case of the plaintiff that his parents were residing at Indiranagar property. His mother died on 06.07.1998. He was residing at USA. His father who was aged, remained alone at Indiranagar property. The 1 st and 2nd defendants were intending to knock off the properties. Hence, taking advantage of the situation, the 1st defendant who is a divorcee moved into the house of his father in the year 1999 and started residing in the said house. 97 O.S.No.6086/2014
113. But, in the cross examination of the 1 st defendant/DW-2 at page No.24 in the middle to the question that in the year 1999, she moved into Indiranagar property, she has answered that she always reside in Indiranagar property only.
114. At this stage, it is pertinent to note that in both Ex.P-1 and 3 which are admittedly dated 17.01.1998, it is stated that their second daughter Smt.T.R.Nirmala, aged 38 years residing with them in the above address i.e., No.99, I Main Road, Indiranagar, Bengaluru - 560 038 i.e., Indiranagar property referred by the plaintiff. Ex.P-1 and 3 are the documents produced by the plaintiff himself and it supports the above evidence of the 1st defendant/DW-2 that she always reside in Indiranagar property only.
115. It is also the case of the plaintiff that the 1st defendant was given an apartment at Somerset Apartments, M.G.Road, Bengaluru by his mother. But to substantiate the same, he has let in nothing. Of course, in the cross examination of the 1st defendant/DW-2, the counsel for plaintiff has tried to elicit the above aversion of the plaintiff.
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116. A question is posed to her in the middle of page No.26 of her cross examination that the signature of the witness at Ex.P-24, above the address of Somerset Apartment, is her signature, but she has answered that she is unable to identify.
117. To the bare eye, the said signature at Ex.P- 24/the release deed dated 01.09.1999 i.e., the signature of the 2nd witness over the address "104, B Block, Somerset Apartment, 18 M.G.Road, Bengaluru" if compared with the admitted signature of the 1st defendant at Ex.P-25/the release deed dated 01.09.1999 and Ex.P-6/the gift deed dated 30.12.2003 of the 2nd defendant as a witness and Ex.P-5/the gift deed dated 30.12.2003 as a beneficiary/donee are taken note off, it appears similar.
118. But, except Ex.P-24, in all the other documents to which the 1st defendant is shown as either party or witness, admittedly her address shown is of the Indiranagar address including Ex.P-23/the release deed she has executed and Ex.P-25/the release deed executed by the 2nd defendant, which are of the same date. 99 O.S.No.6086/2014
119. Hence, as admittedly, the signature of the 2 nd witness at Ex.P-24/the signature which was not identified by the 1st defendant/DW-2 which is not subjected to the handwriting expert's opinion, there is no cogent and corroborative evidence on record to prove the aversion of the plaintiff that his mother had given a flat to the 1 st defendant in Somerset Apartments at M.G.Road, Bengaluru.
120. It is the case of the plaintiff that the 1 st and 2nd defendants have made undue influence and coerced his father and he has listed 11 such instances. The 1 st instance he has stated is that there was temporary injunction passed on 16.02.2005 in OS.No.1226/2005/Ex.P-16 against their father not to alienate the suit property i.e., Benniganahalli property and the same was intimated to his father, 1st and 2nd defendants through the letter of his advocate/Ex.P-17 and the suit summons were served on 1st and 2nd defendants respectively on 28.02.2005 and on 01.03.2005/Ex.P-19. Despite of that, the 1st and 2nd defendants got executed the gift deed dated 02.03.2005/Ex.P-20.
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121. In her cross examination at page No.19, even to the question that on 16.02.2005, an injunction order was granted in favour of the plaintiff in OS.No.1226/2005, the 1st defendant/DW-2 has answered that "she does not remember", she has admitted the suggestion that the same was intimated to them through the notice at Ex.P-17 and at the end of page 18, she has admitted the service of summons/Ex.P-19 in the above suit.
122. Even in page No.19, she has admitted the suggestion that Ex.P-20 is the gift deed executed by their father in favour of his daughters on 02.03.2005, she has denied the suggestion that it was under their influence by violating the injunction order. However, she has admitted the suggestion at page No.20 that Ex.P-20 was registered on 26.03.2005.
123. To the next question that thus, as on the date of registration of Ex.P-20, she was aware of the temporary injunction dated 16.02.2005, she has answered that she does not remember.
124. But, Ex.P-18, the certified copy of the postal acknowledgements demonstrate that they received the 101 O.S.No.6086/2014 summons through RPAD on 17.02.2005 and Ex.P-19 demonstrates that they received the summons through Court on 28.02.2005. Admittedly, Ex.P-20 is dated 02.03.2005 and it was registered on 26.03.2005.
125. Hence, it can be safely concluded that Ex.P-20 was executed in violation of the above injunction order at Ex.P-16 and thus, under the facts and circumstances of the case, the preponderance of probability is much in favour of the aversion of the plaintiff that the 1 st and 2nd defendants made undue influence and coerced their father to execute the gift deed at Ex.P-20 in violation of the injunction order at Ex.P-20.
126. The 2nd instance, the plaintiff put forth is that even after the revocation of the GPA vide Ex.P-15 dated 21.08.2003, the 1st and 2nd defendants unduly influenced their father to represent him and to lease out the Benniganalli property to M/s Vijai Auto Sales and Services Pvt. Ltd. on monthly rent of Rs.1,00,000/- for a period of 4 years by collecting advance of Rs.10,00,000/-.
127. It is in the cross examination of the 1 st defendant/DW-2 at page No.22 that too by way of 102 O.S.No.6086/2014 admission that she and the 2nd defendant are the witnesses to the revocation of GPA dated 21.08.2003 at Ex.P-15. As observed above, at the end of page No.30, she has also deposed that in the year 2004, the rental agreement was renewed.
128. Ex.P-10 is the certified copy of the judgment and decree in the above suit i.e. OS.No.1226/2005 which demonstrates that the 5th defendant is the managing Partner of the 6th defendant i.e., above stated tenant M/s Vijai Auto Sales and Services (P) Ltd. The 1 st to 4th defendants therein are the father and three sisters of the plaintiff.
129. Ex.P-21 is the certified copy of the common written statement filed by the above 5 th and 6th defendants in the above OS.No.1226/2005 which demonstrates that the father of the plaintiff represented the plaintiff and all the 1st to 4th defendants entered into the lease agreement with 6th defendant on 16.11.2004. So, the above lease agreement is subsequent to the revocation of the GPA at Ex.P-14 on 28.01.2003 vide Ex.P-15 for which admittedly, the 1st and 2nd defendants are the witnesses. 103 O.S.No.6086/2014
130. Hence, under the facts and circumstances of the case, the preponderance of probability is much in favour of the aversion of the plaintiff that the 1 st and 2nd defendants have unduly influenced their father to execute the above lease agreement and to receive the advance amount as well as rental amount.
131. The 3rd instance is that he never authorized his father to enter into the alleged sale agreement dated 05.02.1999 in favour of the 1st defendant or in favour of any other person in respect of the Benniganahlli property or any share in it. But, the 1 st and 2nd defendants made undue influence over their father to execute the said sale agreement in favour of the 1st defendant for ridiculously small amount of Rs.8/- per square feet, totally for Rs.2,00,000/-.
132. It is in the cross examination of the plaintiff/PW-1 himself that the GPA at Ex.P-14 was the absolute GPA and the same is supported by the recitals therein. Ex.P-14 is admittedly dated 03.07.1998 and it was revoked on 28.01.2003. Thus, the above sale 104 O.S.No.6086/2014 agreement/Ex.P-22 was executed when the GPA at Ex.P-14 was in force and in accordance with power given therein.
133. But, it is important to note that as observed above, the lease agreement with Madhura Coats Company was in force since 1981 to 2004 and the rental income towards 1/7th share is Rs.68,000/-. The property involved in the alleged sale agreement at Ex.P-22 is undivided share of 1 acre out of 2 acres of the plaintiff in the Benniganahalli property.
134. Admittedly, the total extent is 4 acres and thus, 1/7th share comes to (40 guntas x 4 = 160 guntas/7) 22.857 guntas i.e., around half acre and 3 gunts for which the rental income itself is Rs.68,000/-. Hence, the aversion of the plaintiff that the consideration agreed is ridiculously small sum of money holds force.
135. The 4th and 5th instances, the plaintiff put forth is that all the three sisters have executed the release deeds at Ex.P-23 to 25 respectively dated 01.09.1999, 01.09.1999 and 17.09.1999 releasing their 1/7 th share each in Benniganahalli property by receiving Rs.20,00,000/- each.
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136. Despite of that, the 1 st and 2nd defendants unduly influenced their father to execute the gift deeds at Ex.P-26 to 28 all dated 11.03.2003 gifting 1/14 th share each and Ex.P-20 dated 02.03.2005 gifting 3/14 th share in favour of all the three sisters in Benniganahalli property.
137. As noted above, these release deeds at Ex.P-23 to 25 are also referred in the gift deeds at Ex.P-26 to 28 and even the 1st and 2nd defendants have denied the plaint averments that they had received Rs.20,00,000/- each and relinquished their 1/7th share in Benniganahalli property, the 1st defendant/DW-2 in the last para at page No.20 of her cross examination has admitted that those release deeds i.e., Ex.P-23 to 25 are referred in the gift deeds at Ex.P-26 to 28 and in para No.1 at page No.26, she has admitted the suggestion that in pursuance of Ex.P-24 and 25, they received Rs.20,00,000/- each.
138. So, it is clear that all the sisters have executed the release deeds at Ex.P-23 to 25 respectively on 01.09.1999, 01.09.1999 and 17.09.1999 by receiving Rs.20,00,000/- each towards their 1/7 th share in Benniganahalli property and get back the same through 106 O.S.No.6086/2014 the gift deeds at Ex.P-26 to 28 on 11.03.2003 i.e. half portion (1/14th share each) and another half portion (totally 3/14th share) through the gift deed at Ex.P-20 on 02.03.2005.
139. As noted above, in fact, the Benniganahalli property was gifted by the maternal grandfather of the plaintiff jointly to the plaintiff and his mother only. But, the same was put into the partnership named as Kamala Industries and all the three sisters were taken into the said partnership and were allotted 1/7th share each.
140. Inspite of that, the daughters were paid Rs.20,00,000/- towards their share while releasing their share and obviously, the payment was out of the funds of the plaintiff and his mother which was bequeathed in favour of the plaintiff. Despite of the payment, again the same share was given back to them through the gift deeds at Ex.P-26 to 28 and 20.
141. Hence, the above facts and circumstances of the case probabilize the aversion of the plaintiff that the 1 st and 2nd defendants unduly influenced their father to execute the gift deeds at Ex.P-26 to 28 and 20.
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142. The 6th instance the plaintiff says is that the 1 st and 2nd defendants exercised undue influence over his father to withdraw huge amount in cash by self cheques for their personal use. As noted above, it is evident on record and admittedly Ex.P-29 is the joint account of the plaintiff with his father to which his 2/7 th share of rental income was being credited and his father was operating the same as his GPA holder. Ex.P-14 is the said GPA dated 03.07.1998 and Ex.P-15 is the revocation of the said GPA and it is dated 21.08.2003.
143. As observed above, the 1st defendant/DW-2 has admitted that the entries dated 17.12.1999, 18.01.2000, 19.01.2000 and 12.08.2000 at Ex.P-29 are the transactions made towards purchase of jewelries and sarees.
144. But, it is her voluntary statement that they are the transactions made towards the marriage of the plaintiff. Of course, the 1st defendant/DW-2 has not produced any supportive document in support of her above voluntary statement.
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145. However, as noted above, in his cross examination, the plaintiff/PW-1 himself has deposed that he married on 19.01.2000 and after the marriage, he stayed in his father's house for 5 months. Therefore, if the dates of the above transactions are taken note of, the possibility of the above voluntary statement of the 1 st defendant/DW-2 cannot be thrown out rightly.
146. The 1st defendant/DW-2 has admitted that the entry dated 06.06.2001 at Ex.P-29 reflects that Rs.50,000/- was deposited into her account. But, it is her voluntary statement that the same was given to Sri.B.R.Chandrashekhar i.e., husband of their sister Smt.Padma on the oral instructions of their father to meet the CBI enquiry expenses and the same was intimated to the plaintiff by their father.
147. In her cross examination at page No.31 to the question that Ex.P-31 reveals that almost 20 transactions transferring several lakhs of rupees from the account of their father to her account, she has answered that it was given to B.R.Chandrashekhar and he/B.R.Chandrashekhar said that he required money for CBI enquiry. 109 O.S.No.6086/2014
148. It is important to note that she did not deny the said transactions transferring several lakhs of rupees to her account from the account of their father to which admittedly the rental income of 2/7th share of their mother in the Benniganahalli property which was bequeathed in favour of the plaintiff was being credited since February- 2004.
149. To the next question that why their father did not pay the amount directly to B.R.Chandrashekhar, she has answered that the Bank was opposite to their house, she had to withdraw the amount and to give him the cash.
150. But, it is important to note that in page No.28 at the end of her cross examination, she has admitted the suggestion that Smt.Padma Chandrashekhar had also her independent account in the same branch.
151. So, prima facie, to the mind of a prudent man it appears that if really, those amounts were given to Sri.B.R.Chandrashekhar, the same might have been transferred either to the account of Sri.B.R.Chandrashekhar directly or to the account of Smt.Padma Chandrashekar.
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152. Moreover, there is no explanation given by the 1st defendant what was the necessity/the reason why the amounts were required to be paid in cash. Even for the sake of arguments, it is accepted that it was required to be paid in cash, then also why the transfer of the amounts to the account of the 1st defendant and why not the said amounts withdrawn from the account of their father directly through self cheques when both the accounts of their father and the 1st defendant were in the same bank.
153. In addition, admittedly, no details of the alleged CBI enquiry of B.R.Chandrashekhar are furnished. Even in her cross examination at page No.41, the 1 st defendant/DW-2 has deposed that the payments made to B.R.Chandrashekhar may be to the tune of few crores and she has no impediment to examine him to substantiate the payments of several lakhs of rupees to him, admittedly, no attempts were made to examine the said B.R.Chandrashekhar who is the best witness to depose in that regard.
154. Hence, in the above circumstances, prima facie, the preponderance of probabilities is much in favour of the 111 O.S.No.6086/2014 aversions of the plaintiff that the above amounts admittedly transferred to the account of the 1 st defendant and it was utilized by her personally.
155. The 7th and 8th instances the plaintiff avers are that the alleged gift deeds dated 30.12.2003 in favour of the 1st and 2nd defendants at Ex.P-5 and 6 are the products of their undue influence over their father. In support of this aversion, the plaintiff has stated many reasons. One of such reasons is that the 2nd defendant has not let in any evidence and hence, an adverse inference has to be drawn.
156. In support his arguments with regard to the adverse inference against the 2 nd defendant, the counsel for the plaintiff has relied on the decision reported in (1999) 3 SCC 457 (between Iswar Bhai C.Patel Vs Harihar Behera and Ors. in C.A.No.1417 of 1982 decided on 16.03.1999 by the bench of their Lordships Saiyed Saghir Ahmad and M.B.Sah, JJ.) and has drawn my attention to the observations of the Hon'ble Apex Court to the effect that;
" .....
15. Admittedly defendant No.1 had .............. This fact has not been controverted by the appellant who did not enter the witness box to make a statement on oath denying the statement of defendant (respondent) No.2 that 112 O.S.No.6086/2014 it was at his instance that respondent No.2 had advanced the amount of Rs.7,000 to the appellant by issuing a cheque on the account of defendant (respondent) No.1. Having not entered into the witness box and having not presented himself for cross examination, an adverse presumption has to be drawn against him on the basis of principles contained in illustration (g) of Section 114 of the Evidence Act."
157. The provision of Section 114(g) of the Evidence Act reads;
"114. Court may presume existence of certain facts.- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of particular case.
.....
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;
158. The 1st defendant/DW-2 in her cross examination at page No.17 has specifically deposed that the 2nd defendant has not executed any power of attorney in her favour to depose on behalf of the 1st defendant. Thus, there is no cross examination to the 1 st defendant/DW-2 in respect of Ex.P-6 i.e., the alleged gift deed executed by their father in favour of the 2 nd defendant.
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159. Admittedly, the 2nd defendant is the beneficiary under the gift deed at Ex.P-6 who admittedly did not enter into the witness box and she has also not produced any independent evidence in her support either oral or documentary. Hence, the dictum rendered in the above decision is in support of the plaintiff. The other side has not relied on any decision.
160. The other reason put forth by the plaintiff is that the gift deeds at Ex.P-5 and 6 are hit by Section 16 of the Indian Contract Act, 1872 as they are executed under undue influence for the reasons that a fiduciary relationship exists between the donor and the donee and thus, statutory presumption under Section 16(3) shall be raised that there exists undue influence and the burden of proof is on the donee to show that the gift deeds at Ex.P-5 and 6 are genuine and bona fide, but to establish the same, the 1st and 2nd defendants did not examine the scribe, the witnesses and the advocate who drafted the gift deeds at Ex.P-5 and 6.
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161. Hence, before proceeding further with, it is necessary to go through the provision of Section 16 of the Indian Contract Act which is extracted here below;
"16. "Undue influence" defined - (1) A Contract is said to be induced by "undue influence" where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.
(2) In particular and without prejudice to the generality of the foregoing principles, a person is deemed to be in a position to dominate the will of another-
(a) where he holds a real and apparent authority over the other, or where he stands in a fiduciary relation to the other; or
(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other.
Nothing in this sub-section shall affect the provisions of Section 111 of the Indian Evidence Act, 1872 (1 of 1872)." 115 O.S.No.6086/2014
162. Now, it is necessary to go through the provision of Section 11 of the Indian Evidence Act which is extracted here below;
"111. Proof of good faith in transactions where on party is in relation of active confidence .- Where there is question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence".
163. In support of this reason, the counsel for plaintiff has relied on the decisions reported in;
a) (2004) 9 Supreme Court Cases 468 (in Krishna Mohan Kul alias Nani Charan Kaul and another Versus Pratima Maity and Others in Civil Appeal No.7133 of 2003 arising out of SLP (C) No.21882 of 2002 from the judgment and order dated 29.01.2002 of the Culcutta High Court in SA.No.133 of 1999 decided on 09.09.2003 before the bench of their Lordships Doraiswamy Raju and Arijit Pasayat JJ.) wherein he has drawn my attention to the observations of the Hon'ble Apex Court to the effect that;
"12. As has been pointed out by the High Court, ............... When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But when a person is in a fiduciary 116 O.S.No.6086/2014 relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, and he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the court watches with jealousy all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable that no advantage has been taken of his position. This principle has been ingrained in Section 111 of the Indian Evidence Act, 1872. ............ Where an active, confidential or fiduciary relation exists between the parties, there the burden of proof is on the donee or those claiming through him. It has further been laid down that where a person gains a great advantage over another by a voluntary instrument, the burden of proof is thrown upon the person receiving the benefit and he is under the necessity of showing that the transaction is fair and honest.
13. In judging the validity of transactions between persons standing in a confidential relation to each other, it is very material to see whether the person conferring a benefit on the other had competent and independent advice. The age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. It is always obligatory for the donee/beneficiary under a document to prove due execution of the document in accordance with law, even dehors the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights under the document 117 O.S.No.6086/2014 irrespective of the fact whether such party is the defendant or plaintiff before the court.
14. It is now well established that a Court of Equity, when a person obtains any benefit from another imposes upon the grantee the burden, if he wishes to maintain the contract or gift, or proving that in fact he exerted no influence for the purpose of obtaining it......"
b) (2014) 4 Supreme Court Cases 196 (in Pratima Chowdhury Verusus Kalpana Mukherjee and another in Civil Appeal No.1938 of 2014 decided on 10.02.2014 before their Lordships P.Sathasivam C.J. and J.S.Khehar, J.) wherein he has drawn my attention to the observations of the Hon'ble Apex Court to the effect that;
" A.......
B. Transfer of Property Act, 1882 - Ss. 126 and 54 - Rescission of alleged gift executed on basis of abuse of fiduciary relationship - Transfer of co operative society membership/flat by alleged gift - Validity of transfer - Onus of proof - Effect of fiduciary relationship between parties - Instances establishing such fiduciary relationship and dominating position of one party - Held, when parties are in fiduciary relationship, burden of proving genuineness/fairness of transaction is on party who held that dominating/domineering position.
............
45. When parties are in fiduciary relationship, the manner of examining the validity of a transaction, specifically when there is no reciprocal consideration , has to be based on parameters which are different from the ones applicable to an ordinary case. Reference in this behalf may be made to the decision rendered by this Court in Subhas Chandra Das Mushib Vs. Ganga Prasad Das 118 O.S.No.6086/2014 Mushib, wherein this Court examined the twin concepts of "fiduciary relationship" and "undue influence" .....
.....
47.1. Partha Mukherjee was in a domineering position. He was married to Sova Mukherjee. Sova Mukherjee is the daughter of H.P.Roy. Pratima Chowdhury has lived for a very long time in the house of H.P.Roy. During that period (after his marriage) Partha Mukherjee also shared the residential accommodation in the same house with Prathima Chowdhury, for over a decade. In Indian society the relationship between Partha Mukherjee and Pratima Chowdhury is a very delicate and sensitive one. It is therefore that Pratima Chowdhury extended all help and support to him, at all times. She gave him her flat when he was transferred to Calcutta. She also extended loans to him when he wanted to set up an independent business at Bombay. These are illustrative instances of his authority, command and influence. Instances of his enjoying the trust and confidence of Pratima Chowdhury include, amongst others, the joint account of Pratima Chowdhury with Partha Mukherjee, which the latter operated exclusively, and the drafting of the letters on behalf of Pratima Chowdhury.
c) AIR 1985 MADRAS 321 (in Andalammal, Appellant v. Rajeswari Vedachalam (deceased by LR) and others, Respondents in L.P.A.Nos.77 and 78 of 1978 decided on 27.11.1984 and 17.12.1984 by their Lordships V.Ramaswami and Shanmukham JJ.) wherein he has drawn my attention to the observations of the Hon'ble High Court of Madras to the effect that;
" .............
21. A close examination of the said provision reveals that ......... Another special feature is found in S.16(3) i.e. if 119 O.S.No.6086/2014 it is established that a person who is in a position to dominate the will of another entered into a contract with him and if the transaction appeared either on the face of it or on the evidence adduced to be unconscionable, the burden is upon the person who was dominating the will of another to prove that such contract was not induced by undue influence. The word "shall" found in S.16(3) indicates that the presumption is mandatory. In the instant case, if the ingredients referred to in S.16(3) were to be established by the appellant the burden would be on the respondents to satisfactorily prove that Ex.D,2 sale was not induced by undue influence. The concomitant position is that if the burden is not discharged the presumption shall prevail. ............ To put it differently, positive proof that the transaction is unconscionable is dispensed with to raise a statutory presumption and the statutory presumption would be in force until the burden is rebutted. ................
22. S.16(2) says what is domination. If a person should hold either a real or apparent authority over the other, he would be deemed to be in a position to dominate the will of another (emphasis by us). We shall not lose the significance of the expressions 'real' and 'apparent' employed in that sub-section. In our view, even if the circumstances were to project that one had apparent authority over the other, it would be deemed that the person dominated the will of the other as envisaged by sub-sec (2) of S.16. So too, if a person were to stand in a fiduciary relationship with the other, the former would be deemed to have dominated the will of the other.........
........
30. D.W.3 is the scribe but he is still working under the ....... From the foregoing assessment we find that the appellant had succeeded in establishing that D.W.4 and P.W.4 were not only in a position to dominate her will but also brought about Ex.B2 transaction which both on the evidence and on the face of it not only appeared to be unconscionable but was actually proved to be so. In other words, the first respondent did not discharge the onus that was on her by virtue of S.16(3) but also miserably failed to adduce evidence to rebut such a statutory presumption".120 O.S.No.6086/2014
d) AIR 1961 MADRAS 190 (in M.A. Abdul Malick Saheb, Appellant v. T.P.Muhammed Yousuf Sahib and others, Respondents in Appeal No.272 of 1956 decided on 21.03.1960 against the decree of Sub-Court, Vellore, DD 05.07.1956 before their Lordships Balakrishna Aiyar and Jagadisan JJ.) wherein he has drawn my attention to the observations of the Hon'ble High Court of Madras to the effect that;
"(a) Contract Act (1872), SS. 16 and 19-A - Fiduciary relationship - Parent and child - Voluntary gift by child to parent - Presumption of undue influence arises - Onus lies on donee not only to prove that donor was emancipated but also that he had acted independently.
The mere existence of fiduciary relation between the donee and donor raises the presumption of undue influence and the Court will hold the transaction to be bad unless the presumption is rebutted by cogent evidence adduced by the donee.
Transaction in the nature of bounty from a child are regarded in equity with great jealousy. Special relationships like parent and child, solicitor and client, doctor and patient, guardian and ward, spiritual adviser or clergyman and practitioner constitute protected classes because the law throws a mantle of protection round them by raising a rebuttable presumption of undue influence."
e) MANU/BH/0223/2010 (in Sita Ram Singh Son of Late Shri Ram Dayal Singh Vs Ram Kishori Devi alleged to 121 O.S.No.6086/2014 be widow of Amar Roy (deceased) and Draupadi Kumari alleged to be the daughter of Amar Roy (deceased) decided on 28.04.2010 before their Lordships S.K.Singh and Gopal Prasad JJ.) wherein he has drawn my attention to the observations of the Hon'ble High Court of Patna to the effect that;
" Case Note:
Family - Gift Deed - Question arose in the petition was whether the deed of gift was executed in circumstances which render the deed of gift invalid as suffering from undue influence, fraud and misrepresentation Held, There was fiduciary relationship between plaintiff and defendant and the defendant dominated the will of the original plaintiff - The gift deed was unconscionable and hence the onus shifted on the defendant to show that the deed did not suffer form undue influence - Nothing had been pointed out to disturb the findings of the trial Court..........."
f) AIR 1929 PC 3 (between Appellant Inche Noriah Binte Mahomed Tahir, V. Shaik All'e Bin Omar Bin Abdullah Bahashuan Respondent decided on 15.10.1928 before their Lordships The Lord Chancellor, Viscount Sumner, Lord Atkin) wherein he has drawn my attention to the observations of the Hon'ble Privy Council to the effect that;
122 O.S.No.6086/2014
" When the donor of a gift seeks to set it aside on the ground of undue influence and by the facts evidencing the relations between the donor and donee, a fiduciary relationship is established and a presumption of influence is raised the burden lies on the donee to prove that the gift was the result of a free exercise of independent will.
This presumption can be rebutted by proof of independent legal advice and it is not essential that the advice must be proved to have been taken.
Independent legal advice such as is sufficient to rebut the presumption cannot be defined beyond this that it must be given with a knowledge of all relevant circumstances and must be such as a competent and honest adviser would give if acting solely in the interests of the donor."
164. In the present case on hand, it is an admitted fact and evident on record that the 2 nd defendant did not enter into the witness box and did not let in any independent evidence on her behalf. The 1 st defendant even stepped into the witness box, she did not get examined either the scribe or the witness or the advocate who drafted the gift deeds at Ex.P-5 and 6.
165. It is an admitted fact and evidence on record that the 1st and 2nd defendants are the daughters of the donor and 1st defendant alone has been residing with him since the date of death of their mother and even before that she was alone residing with their parents and thus, in the 123 O.S.No.6086/2014 circumstances of the case, she was in a dominating position over her father.
166. Hence, in the circumstances of the case, the above decisions on which the counsel for plaintiff has relied on are prima facie in support of the above reason of the plaintiff.
167. It is the case of the plaintiff that his father was an aged man suffering from Alzheimer's disease which was an age related disease affecting the memory. The 1 st and 2nd defendants took the advantage of the same and unduly influenced their father to execute the gift deeds at Ex.P-5 and 6.
168. With regard to the nature of Alzheimer disease and its impact, the counsel for the plaintiff has relied on the decision reported in MANU/DE/1381/2001 (between Om Prakash Rehan and Ors. Vs Brahm Dev Rehan and Ors in I.A.9151/1999 in S.No.4433/1992 decided on 21.12.2001 by the bench of his Lordship Sharda Aggarwal J.) wherein he has drawn my attention to the observations of the Hon'ble High Court of Delhi to the effect that;
" .......124 O.S.No.6086/2014
4. As regards the ailment of Defendant No.1, .......... This disease is incurable, it causes dementia which progresses slowly resulting into progressive loss of many brain functions including gradual intellectual decline, inability to concentrate, disorientation, inability to maintain goal directed purposeful thinking or behavior, withdrawal from social interaction and the judgment impairment, etc. It even causes decreased ability to function in self care and daily living activities.
........."
169. With regard to the age and health condition of the donor, the counsel for the plaintiff has relied on the decisions reported in;
a) AIR 1985 Punjab and Haryana 315 (in Ajmer Singh and Others, Appellants v Atma Sing, Respondent in Regular Second Appeal No.2670 of 1980 decided on 13.12.1984 before his Lordship J.V.Gupta, J.) wherein he has drawn my attention to the observations of the Hon'ble High Court of Punjab and Haryana to the effect that;
" ...............
4. I have heard the learned counsel for the parties and have also gone through the relevant evidence on record. ......... From a perusal of the above provisions it is quite clear that the gift, in order to be valid, must have been made voluntarily. In the present case, the evidence in this behalf is missing. It was for the defendants to prove that the plaintiff executed the gift deeds voluntarily after understanding the nature of the documents. This, the defendants have failed to prove by any cogent evidence as found by the lower appellate Court. .............. The circumstances of the present case clearly go to prove that 125 O.S.No.6086/2014 the plaintiff was an old man with feeble health and weak eye sight and was unlettered. Charan Singh, the father of the defendants, was in a position to dominate his will as he had faith in him and that is why he wanted to execute the special power of attorney in his favour in regard to his property. The mere fact that the plaintiff has many litigations pending is of no consequence unless there was evidence to prove as to what type of litigation if at all relevant to the matter he was having.........."
b) AIR 2006 RAJASTHAN 152 (in Smt.Munna Kumari v. Smt.Umrao Devi & Ors. in Civil Second Appeal No.98 of 1990 decided on 20.12.2005 against the judgment and decree of Hari Singh Poonia RGJS, Addl.District Judge, No.6 Jaipur, DD 07.03.1990 before his Lordship Shiv Kumar Sharma, J.) wherein he has drawn my attention to the observations of the Hon'ble High Court of Rajastan to the effect that;
"..........
16. Bearing in mind the afore quoted principles if the evidence of the instant case is examined, it appears that the plaintiff has proved that relations between Sugan Chand and Nagi were such that one was in a position to dominate the Will of the other. It is established from the evidence that Nagi created such circumstances that plaintiff Kapoor Chand had to leave the house of Sugan Chand who was at the mercy of Nagi being alone and sick. Bhanwar Lal (DW-8) with whom also Nangi had affair, was residing with his minor daughter Munna Kumari in the house of Sugan Chand. The plaintiff has established that influence exercised by Nagi in getting gift deed executed by Sugan Chand was undue. It has also been proved that the transaction was unconscionable. The 126 O.S.No.6086/2014 burden of proof that gift deed was not executed under undue influence was on the defendant but she failed to discharge it. ............ In my opinion, the gift deed was executed under undue influence and the gift was incomplete. Ineffective and inoperative. I am satisfied that learned Appellate Court has assigned good reasons in reserving the findings of learned trial Court and no substantial question of law arises in this appeal....."
c) AIR 1973 Mysore 338 (in Smt.Chinnamma and others Appellants v. The Devanga Sangha and others Respondents in First Appeal No.30 of 1968 before their Lordships Ahmad Ali Khan and E.S.Venkataramaiah JJ.) wherein he has drawn my attention to the observations of the Hon'ble High Court of Mysore to the effect that;
"........
17. The next found ground on behalf of ........... In the instant case it is clear from the evidence discussed above that Kenchamma was suffering from cancer on 8.12.1960 on which date it is alleged that Ex.P-1 was executed. That it was known to PW-3 the clerk of the plaintiff and that she died of the said disease on 7.3.1961. It appears to us to be probable that Kenchamma knew that she was suffering from the said disease even for about a few weeks prior to 28.12.1960. Defendant No.1 has stated in her deposition that Kenchamma was .... from the year 1960. It is quite natural that Kenchamma must have been suffering from bodily and mental distress on account of the dreadful nature of the disease and as a consequence her mental capacity must have been affected during that period. The statement of defendant No.1 which is corroborated by DW- 2 that Kenchamma's mental capacity had been affected during the period appears to be quite probable. During that period when Kenchamma's mental capacity was affected the plaintiff secured the gift deed from her. ................127 O.S.No.6086/2014
Under these circumstances sub section 3 of Section 16 would clearly be attracted throwing the burden of proving that by undue influence on the plaintiff who is deemed to be in a position to dominate that the Will of Kenchamma by virtue of sub section (2) of Section 16 of the Act. On a careful assessment of the evidence adduced in the case, we are satisfied that the plaintiff has not discharged the burden of proving that the document under Exhibit P-1 was not induced by undue influence..........
..............
19. After giving out anxious consideration to all the facts of the case presented before us, we hold that the execution of the gift deed Exhibit P-1 is not duly proved and even if it is executed by Kenchamma she had done so on account of the undue influence and therefore Exhibit P- 1 is void."
d) AIR 1962 PATNA 168 (V 49 C 39) (between Bhola Ram Lieri and others, Appellants vs Peari Devi and others, Respondents in A.F.O.D.No.590 of 1956 decided on 10.10.1961 from the decision of Addl. Sub. J., Deoghar dated 12.09.1956 before their Lordships Kanhaiya Singh and Ramrathna Singh JJ.) wherein he has drawn my attention to the observations of the Hon'ble High Court of Patna to the effect that;
"(a) ......
(c) Contract Act (1872) S.16 - Undue influence -
What constitutes - Party in dominating position must have used the position to obtain unfair advantage for himself - Transaction unfair on its face - Burden is on such party to prove that the other party was not induced to make the transaction by undue influence.
128 O.S.No.6086/2014
Where a party challenges a deed of gift as on the ground of its having been executed under undue influence he must prove, firstly that there was a special relationship between the donor and the donees on account of which the former had upon the latter for advice and the later were in a position to dominate the will of the owner in giving the advice and secondly that the donees used that position to obtain an unfair advantage for themselves. But if the party proves that the donees were in a position to dominate the will of the donor and that the gift appeared to be unconscionable the onus will be shifted on the donees to show that the donor was not included to make the gift by undue influence and he had the opportunity to obtain independent advice before making the gift.
Where it was proved that the donor was so old in the time he executed the deed of gift that he is helpless in walking; he brought by the husband of the donees since their childhood, married them and maintained them as well as their wives; the donor had boundless affection for all of them, and his business was being looked after by the husband of one of the donees was a person who could though her husband and the other was a distant heir the deed of gift was unnatural inasmuch as the donor excluded his natural heirs, and by executing the deed of gift, the donor placed himself and his wife at the mercy of the donees inasmuch as he did not keep any property for himself.
Held that the donees were in a position to dominate the will of the donor and inasmuch as the transaction was unconscionable the donees had to satisfy the court that they did not abuse their position and that the deed of gift was not brought about by any undue influence on their part. The fact that the contents of the deed of gift were and over and explained to the donor before he signed the same did not mean that he received independent advice."
e) The counsel for plaintiff has also relied on the decision reported in AIR (38) 1951 Himachal Pradesh 54 129 O.S.No.6086/2014 (Mt.Selwi pltf - Appet v. Rattn Deft - Resp. in Civ.Revn.No.30 of 1950 decided on 07.04.1951 before his Lordship J.C.Chowdhary J.) wherein he has drawn my attention to the observations of the Hon'ble High Court of Himachal Pradesh to the effect that;
" ...............
(5) Now, there is no doubt that the appellant is an old illiterate woman, and that the respondent her only living relation, has been living with her since the life time of her husband. It is clear therefore that the appellant was completely in the hands of the respondent. The relationship existing between the parties was therefore sufficient to raise the presumption that the deed in question had been obtained through undue influence, which rendered the fraud possible. Inche Noriah Vs Shaik Allie, AIR (16) 1929 P.C.S This presumption is strengthened all the more by the fact that the gift covers the entire property belonging to the appellant. That being so, it was incumbent upon the respondent to prove in the words of the aforesaid ruling, that the gift was the spontaneous act of the donor acting under circumstances which enabled her to exercise an independent will. This onus the respondent has failed to discharge.........."
f) MANU/HP/1267/2014 (between Hari Ram Vs. Tarlok Chand in RSA.No.160/2003 decided on 04.12.2014 before his Lordship Rajiv Sharma, J.) wherein he has drawn my attention to the observations of the Hon'ble High Court of Himachal Pradesh to the effect that;
" ............130 O.S.No.6086/2014
19. In the instant case, the defendant was in a position to dominate the will of the old widow. She was illiterate lady with rural background. She was made to understand that she has to execute the 'Will' but in fact 'Gift' was got executed from her. The family of the defendant has also stayed with the plaintiff. They have exercised undue influence upon the plaintiff. The execution of 'gift' in favour of the plaintiff was not voluntary act and it was obtained by way of fraud and misrepresentation and undue influence. The substantial question of law is answered accordingly."
170. With regard to this reason, it is in the cross examination of the 1st defendant/DW-2 at page No.35 that it may be correct to suggest that as per Ex.P-5 and 6, the age of their father was 75 years. In Ex.P-5 and 6, the age of their father is shown as 75 years.
171. In her further cross examination in the same page, the 1st defendant/DW-2 has admitted the suggestion that their father was suffering from Alzheimer ailment and has also deposed that it was from 2010. Admittedly, Ex.P-5 and 6 both are dated 30.12.2003. But, she has not produced any document to show that the above ailment was only from 2010.
172. On the other hand, in next line, she has admitted the suggestion that Alzheimer is an age related disease and to the question that can she say when she 131 O.S.No.6086/2014 came to know that their father is suffering from Alzheimer ailment, she has deposed that she does not remember.
173. To the next question that Alzheimer disease affects the memory, she has deposed that "she has no idea"
and to the next question that since their father was suffering from Alzheimer disease, he had not his own mind, she has answered that "she has no idea".
174. It is important to note that the suggestion is that "their father had not his own mind, because of the said disease" which is not denied by the 1st defendant/DW-
2. On the other hand, her answer is that "she has no idea".
175. So, in view of the above noted oral evidence of the 1st defendant/DW-2, the admitted fact that the 1st defendant alone was residing with their father, who was an aged man suffering from such an age related disease affecting the memory, the observations in the above noted decisions are aptly applicable to the facts and circumstances of the case on hand.
176. The one more reason by the plaintiff is that the donor has not made alternate arrangements. In support of 132 O.S.No.6086/2014 this reason, the counsel for plaintiff has relied on the decisions reported in;
a) MANU/TN/0685/1996 (in Appellants: Dharman and Ors. Vs. Respondent: Marimathu in Second Appeal No.744 of 1983 decided on 02.07.1996 before his Lordhsip D.Raju J.) wherein he has drawn my attention to the observations of the Hon'ble High Court of Madras to the effect that;
" Case Note:
Property - Cancellation of Gift Deed - ......... - Held, gift deed Ex.A-6 would to show that it was not only cryptic but makes no mention about so called misunderstandings between first defendant and his daughters or furnish any reasons for disinheriting completely his daughters and grand children - However, First Appellate Court miserably failed to keep into account unnatural nature of disposition and total absence of any reasons in document for completely disinheriting all daughters without even making any mention of existence of such daughters and their heirs who would all figure as class-I heirs under law of Succession - Further, it was not specific mention of very word undue influence that really matters but existence of relevant facts pleaded and proved that was only relevant and sufficient. Though beneficiary under document of nature under consideration with unreasonable and unconscionable disposition was obliged not only to substantiate that deed of gift was executed voluntarily but also without any undue influence having been practiced upon donor - Therefore, order passed by First Appellate Court was set aside and order passed by Trial Judge was restored - Appeal allowed. Ratio Decidendi "Gift deed shall be canceled if it is executed voluntarily with undue influence.133 O.S.No.6086/2014
17. The various decisions referred to above would go to show that if on the face of the document and the nature of the transaction covered by the document appears to be either unconscionable or unnatural one, the burden of proving that the transaction was not induced by undue influence was considered uniformly to rest with the beneficiary under the document................................. As noticed earlier the beneficiary under document of the nature under consideration in this case with an unreasonable and unconscionable disposition is obliged not only to substantiate that the deed of gift was executed voluntarily but also without any undue influence having been practiced upon the donor..........."
b) AIR 1989 HP 51 (in Smt.Niko Devi, Appellant Vs Kripa, Respondent in Second Appeal No.96 of 1978 decided on 19.07.1988 before his Lordship R.S.Thakur, J.) wherein he has drawn my attention to the observations of the Hon'ble High Court of Himachal Pradesh to the effect that;
"...........
11. Now as already observed, it is clear that the ............ The defendants by virtue of the impugned gift has got her divested of her entire movable and immovable property which she had inherited from her parents. Thus the defendant was not only in a position to dominate the will of the plaintiff by virtue of his being loco parentis to her but the impugned transaction was apparently an unconscionable one as she stands divested of her entire property by virtue of this gift deed. Thus in my view, in the facts and circumstances of the case, the defendant was in a position to dominate the will of the plaintiff and he used that dominance to enter into the impugned transaction which is on the very face of it unconscionable since it has divested the plaintiff of her entire property and thus there 134 O.S.No.6086/2014 could be no better example of a transaction being vitiated by undue influence.
12. Apparently in these circumstances the burden lay squarely on the shoulder of the defendant to prove that at the time of the impugned transaction the plaintiff had an independent advice available to her and the impugned gift deed was a voluntary act on her part when she understood the nature of the transaction in question.
13. After going through the evidence on record I have no doubt in my mind that the defendant had miserably failed to discharge the onus and in these circumstances the plaintiff is entitled to avoid the transaction in question".
c) AIR 1984 HIMACHAL PRADESH 11 (between Smt.Takri Devi, Applicant v. Smt. Rama Dogra and others, Respondents in C.S.No.24 of 1981 decided on 06.06.1983 before his Lordship V.P.Gupta, J.) wherein he has drawn my attention to the observations of the Hon'ble High Court of Himachal Pradesh to the effect that;
" ...........
37. A person with ordinary prudence will not gift whole of her property ....... In the gift deed Ex.D-1 it is stated that the donee was rendering services to the plaintiff for the last about three years (from the year 1977). There is no proof of this fact. The recital of the alleged services in the gift deed is apparently wrong. There is also no evidence to prove that the donee was managing or looking after the property of the plaintiff. The gift deed (Ex.D-11) is in lieu of past and future services. The past services are not proved and the question of future services does not arise. .....
.............135 O.S.No.6086/2014
43. From the various circumstances already narrated and discussed by me, I am of the view that the present transaction of gift deed evidenced by Ex.D-1 is the result of 'undue influence' exercised by the donee upon the plaintiff as the donee was in a position to dominate the will of the plaintiff. This issue is accordingly decided in plaintiff's favour."
177. In this case, Ex.P-5 and 6 prima facie shows that there is no alternate arrangements either to the donor himself or the plaintiff. In this regard, in her cross examination at page No.41 to the question that there was no reason for their father to exclude the plaintiff, 1 st defendant/DW-2 has answered that the plaintiff has lost the love and affection of their father as he always refused their father's advice for up lifting his future.
178. But as noted above, the 1 st and 2nd defendants have failed to prove that there was no good terms in between their father and the plaintiff. Moreover, in the same page i.e., at 41, to the next question that there is no reason forthcoming in Ex.P-5 to exclude the plaintiff, the 1st defendant/DW-2 has deposed that she has no idea.
179. Admittedly, except the name of the donee, all the recitals at Ex.P-5 and 6 are similar and they do not disclose any reason for excluding the plaintiff. Hence, the 136 O.S.No.6086/2014 above noted decisions on which the counsel for plaintiff has relied on are aptly applicable to the case on hand.
180. The next reason the plaintiff has put forth is that donee has played an active part in the drafting, registration and execution of the gift deeds. In support of this reason, the counsel for plaintiff has relied on the decisions reported in;
a) AIR 1972 Himachal Pradesh 117 (in Smt. Kartari, Appellant V. Kewal Krishan and others, Respondent in Second Appeal No.135 of 1968 decided on 14.10.1971 from the judgment of Dist. J., Kangra dated 24.06.1968 before his Lordship D.B.Lal, J.) wherein he has drawn my attention to the observations of the Hon'ble High Court of Himachal Pradesh to the effect that;
"(A) T.P. Act (1882) Sec. 122 - Gift deed - Execution under undue influence - Test.
The Court trying a case of undue influence must consider two things to start with namely:
(i) Are the relations between the donor and the donee as such that the donee is in a position to dominate the will of the donor? And 137 O.S.No.6086/2014
(ii) Has the donee used that position to obtain an unfair advantage over the donor?
A. Widowed woman of advanced age was looked after by her only daughter who was also a widow, issue less and not under affluent circumstances. During short absence of the daughter from the old woman, the collaterals of the husband of the woman in the fourth degree got a gift deed executed in their favour. They took a leading part in the execution of the gift deed. Immediately afterwards the woman lodged a complaint with police that the deed was obtained after exercising undue influence.
Held, the transaction of gift was void as the natural heir of the donor was deprived of the property. The fact that the principal beneficiary took leading part in execution of the gift deed was also by itself sufficient to prove that he dominated the will of the old woman.
(B) T.P. Act (1882) Sec. 122 - Gift - Plea of undue influence - Onus.
If the transaction of gift appears to be unconscionable the burden of proving that the contract was not induced by undue influence lies upon the person who was in a position to dominate the will of the donor. AIR 1967 SC 878, Followed."
b) AIR 1975 ALLAHABAD 259 (between Sher Singh and others, Appellants v. Puthi Singh and others Respondents in Second Appeal No.1380 of 1969 decided on 12.11.1974 before their Lordship K.N.Seth, J.) wherein he has drawn my attention to the observations of the Hon'ble High Court of Allahabad to the effect that; 138 O.S.No.6086/2014
" ...........
6. Section 16 of the Indian contract Act incorporates the principles relating to .......... In the present case, as observed earlier, the plaintiff was an illiterate, rustic villager aged about 90 years, physically infirm and mentally in distress. He had none to look after him after the death of his wife and the marriage of his two daughters. The defendants were his nearest relations who at one time formed a joint family. They looked after his daily needs and managed his cultivation. They were obviously in a position to dominate his will. It was therefore, for the defendants to establish to the satisfaction of the court that the gift deed had been obtained without exercising undue influence. The law did not require the plaintiff to establish positively that in fact the deed had been obtained by exercising undue influence ......... It was enough to point out that the defendants were in a position to dominate his will and that they obtained an unfair advantage by using that position. ............ Moreover there appears to be no apparent reason to impel the plaintiff to deprive his daughters and their sons the right to inherit the properties after his death. In such a situation the burden lay on the defendants to rebut the presumption and to establish by cogent evidence that the confidence was not abused and the transaction was not induced by undue influence and the gift deed was executed under circumstances which enabled the donor to exercise an independent will. ....... The scribe has not been examined who could depose whether he prepared the document on the instructions of the plaintiff or was directed to do so by the defendants. .......
It appears doubtful if the ........................... The defendants took a prominent part in the execution of the gift deed. They collected all the material details of the Bhumidhari plots, purchased the stamps and appear to have got the document scribed under their instruction. The plaintiff due to his physical and mental infirmities remained unaware and ignorant of the consequences of the act which he was induced or misled to perform. Being a 139 O.S.No.6086/2014 simple illiterate villager, he was left with no will or mind of his own due to extreme old age and serious physical ailments which made him totally dependent on others and the defendants took advantage of his helplessness and got the gift deed executed in their favour.
.............
10. In view of the observations made above the decree of the court below canceling the gift deed must be affirmed. The appeal has no merits and is accordingly dismissed with costs."
181. With regard to this reason, in her cross examination at page No.37 in the middle, the 1st defendant/DW-2 has admitted the suggestion that the alleged services, the duration and the nature of the alleged services rendered by her are not forth coming in Ex.P-5. She has voluntarily deposed that the scribe did not feel that it was necessary. To the question that did she ask their father about non mentioning of the alleged services, she has answered that she did not feel it necessary.
182. But, it is important to note that it is the defence of 1st and 2nd defendants that they taken care of their parents and considering the services rendered by them, their father had voluntarily executed the gift deeds at Ex.P- 5 and 6 in their favour and admittedly, there is no mention in Ex.P-5 and 6 about the alleged services, duration and 140 O.S.No.6086/2014 nature of such services which creates a doubt in the mind of a prudent man with regard to the alleged services rendered by the 1st and 2nd defendants.
183. On the other hand, in the middle at page No.45 of her cross examination, the 1st defendant/DW-2 has admitted the suggestion that the 2nd defendant is residing with her husband. To the question that after the marriage, 2nd defendant never resided at Indiranagar, she has answered that in the year 1997, she came down for confinement.
184. Of course she had denied the suggestion that the 2nd defendant never provided any service to their father. But, it is important to note that after the marriage, the 2nd defendant is admittedly, residing with her husband and in all the documents to which the 2 nd defendant is the party, including Ex.P-1 and 3/the certified copies of the gift deeds executed by the parents of the plaintiff in his favour both are dated 17.01.1998 which the old documents on the record of this case, the Cox Town address of the 2 nd defendant is shown. Hence, it is clear that the 2 nd 141 O.S.No.6086/2014 defendant did not provide the alleged services if any to her father.
185. The reason/explanation given by the 1 st defendant that the scribe did not feel it necessary to mention the the alleged services in the gift deeds and she did not feel necessary to ask their father about non mentioning of the alleged services, appear not an acceptable explanation that too in the facts and circumstances of the case.
186. Hence, the dictum rendered in the above decision is helpful to the plaintiff and the preponderance of probability is much towards the aversion of the plaintiff that the alleged services were not provided by the 1 st and 2nd defendant to their father.
187. At the end, in para No.37 of her cross examination, the 1st defendant/DW-2 has deposed that she does not know the witness to Ex.P-5 by name Nirmala (the address of this witness demonstrates that she is the 1 st witness to both Ex.P-5 and 6). She has voluntarily deposed that she/witness Nirmala signed the document on the request of their father.
142 O.S.No.6086/2014
188. In the next page at 38, in the beginning, she has deposed that the witness Nirmala to Ex.P-5 and the release deed at Ex.P-25 is one and the same and admitted the suggestion that she is also one of the witnesses to Ex.P-25. However, denied the suggestion that thus, she knows the witness Nirmala since 1999. She has voluntarily deposed that she/witness Nirmala known to their father.
189. In next para i.e., para No.2 at page No.38, she has also admitted the suggestion that as per the address stated in Ex.P-5, both herself and the witness Nirmala reside in the 1st Stage, Indiranagar Bengaluru. But, has denied the suggestion that both the witnesses to Ex.P-5 signed the documents on her instance. However, she has admitted the suggestion that she has no impediment to examine the witnesses to Ex.P-5, but admittedly, no witnesses to either Ex.P-5 or 6 are examined.
190. As noted above, 2nd defendant did not enter into the witness box and she has also not let in any independent evidence on her behalf to prove the gift deeds particularly the gift deed in her favour at Ex.P-6. Hence, the possibility of the suggestion that the witnesses to the 143 O.S.No.6086/2014 gift deed signed the documents on the instance of the donees cannot be thrown out rightly.
191. In the next para at 3 in page No.38, even the 1 st defendant/DW-2 has denied the suggestion that she obtained the stamp papers and got prepared Ex.P-5 and 6, to the next question that Ex.P-5 reflect that the stamp duty was paid by her, she has answered that it was instructed by the scribe to pay the stamp duty.
192. Even, she has denied the suggestion that no such instruction was given by the scribe and it was paid on her own, at page No.39 of her cross examination, to the question that she trusted the scribe of Ex.P-5 and 6, she has answered that they trusted their advocate Sri.Rama Murthy who asked the scribe to draft the gift deeds. But, at the end of page No.43, even she has deposed that since 1977, Sri.Rama Murthy is their advocate, she has denied the suggestion that Sri.Rama Murthy, Advocate never acts against their advice.
193. In the same page i.e., page No.39, at the last para, she has deposed that she came to know about the gift deed first time in the office of Sub-Registrar on the date 144 O.S.No.6086/2014 of registration and she does not remember who were present in the office of Sub-Registrar on that date.
194. But, it is in the middle at page No.43 of her cross examination that at the time of execution, their advocate Sri.Rama Murthy instructed orally the scribe to prepare the draft and it was in his office. So, the above evidence falsifies the evidence of the 1 st defendant that she came to know about the gift deeds first time in the office of the Sub-Registrar on the date of registration.
195. It is also in her cross examination at page No.42 that on the date of registration, she went along with her father to the office of Sub-Registrar; she does not remember who were present at that time and she did not check her bank balance while issuing the DD towards the stamp duty and registration fee of Ex.P-5.
196. To the question that before bringing the DD, she was aware of quantum of amount for which DD was to be taken, she has answered that her father had brought the DD. To the question that Ex.P-5 reflects that the DD was drawn in her name, she has answered that it may be as her father had joint account with her.
145 O.S.No.6086/2014
197. She has also deposed that the joint account was at Canara Bank, Indiranagar Branch, Bengaluru and to the question that DD shown in Ex.P-5 was drawn on Corporation Bank, she has answered that "she has no idea". However she has deposed that she does not have bank account at Corporation bank.
198. In the last para at page No.43, she has also deposed that she does not know when her father went and collected the DD for registration. Admittedly, their father was aged 75 years and was suffering from Alzheimer ailment which is an age related disease affecting the memory.
199. So, the sum and substance of the above evidence of the 1st defendant/DW-2 in a nutshell, clearly show that she went on deposing convenient to their defence and she was well aware of the gift deeds going to be registered on 30.12.2003 even before the registration and she on her own has brought the DD.
200. At the end in para No.43, to the question that whether common instructions were given to prepare Ex.P-5 and 6, she has answered that it was separate instructions. 146 O.S.No.6086/2014 To the question that the scribe was in touch with advocate Sri.Rama Murthy before registration, she has answered that both of them work in the same office.
201. She has deposed that the scribe has brought the stamp paper for Ex.P-5. Her father alone was present while discussing with advocate and she came to know about it from her father. She had no impediment to examine their advocate Sri.Rama Murthy and the scribe of Ex.P-5. But, admittedly, none of them are examined.
202. As noted above, even the 1 st defendant/DW-2 has stated that separate instructions were given to prepare Ex.P-5 and 6, at page No.54 of her cross examination, to the question that whether their father took independent advice before executing Ex.P-5, she has answered that she has no idea. She has also deposed that she does not know the name of the scribe and admittedly, the scribe is not examined.
203. Hence, in this case also as noted above, the 1 st defendant resided alone with their father who was an aged person having the age related ailment i.e. Alzheimer affecting the memory, has not made any alternative 147 O.S.No.6086/2014 arrangements either for himself or for the plaintiff and thus excluded the plaintiff which probabalizes the active role of the 1st and 2nd defendants in getting executed the gift deeds at Ex.P-5 and 6 and the dictum rendered in the above decisions are applicable to the facts of this case.
204. The 9th, 10th and 11th instances of undue influence the plaintiff has put forth are that;
a) the 1st defendant unduly influenced their father to execute the gift deed at Ex.P-41 in her favour;
b) thereafter, deliberately she has mortgaged the property gifted under Ex.P-41 i.e., Indiranagar property as the security for the loan vide Ex.P-40; and
c) the 2nd defendant has exercised undue influence on their father and purchased NGEF property vide sale deed dated 29.11.2001 vide Ex.P-42 by using the funds withdrawn from the account of their father to which the 2/7th share of the rental income of their mother which was bequeathed in favour of the plaintiff was being credited.
205. As the evidence elicited in the cross examination of the 1st defendant/DW-2 with regard to these 3 instances 148 O.S.No.6086/2014 are interlinked with each other, these instances are taken together for consideration.
206. In her cross examination at page No.50, the 1 st defendant/DW-2 has admitted the suggestion that as per Ex.P-41, the age of their father was 76 years and the 2 nd defendant is witness No.2 to Ex.P-41.
207. She has also deposed that she came to know about Ex.P-41 when it was being prepared; she has no idea about how many days before execution, it/Ex.P-41 was prepared. She has admitted the suggestion that she paid Rs.830/- as registration charge and she purchased DD.No.072554 dated 13.04.2004 for Rs.1,150/- towards stamp duty.
208. To the question that does she was aware to the exact name and amount to purchase the DD before the registration of Ex.P-41, she has answered that it was on the instruction of her father. To the question that Ex.P-41 does not reveal any such instruction by their father, she has answered that he had told orally.
209. In page No.51 of her cross examination, to the question that the conditions referred in page No.4 of Ex.P- 149 O.S.No.6086/2014 41 found no place at Ex.P-41, she has answered that it may be and she has no idea. Ex.P-41 shows that in page No.4 at para No.2, it is stated that;
"The desires to gift the Schedule Property to the Donee as gift in consideration of natural love and affection, subject to the conditions hereinafter mentioned. ...."
But, the further recitals at Ex.P-41 do not contain any such conditions.
210. She has also deposed that she does not know who has drafted Ex.P-41. She has denied suggestion that on her instruction, Ex.P-41 was prepared. She has also deposed that she does not remember who had purchased the stamp papers at Ex.P-41. However, she has stated that herself, her father and witnesses were present in the office of Sub-Registrar at the time of registration of Ex.P-41.
211. To the question that even after execution of Ex.P-41, their father continued in Indiranagar house for which she has answered that it was his house and he continued. She has denied the suggestion that Indiranagar property is not the self acquisition of their father and has also deposed that based on the title documents, she says that Indiranagar property is the self acquired property of 150 O.S.No.6086/2014 their father. But, no such title document is admittedly produced by them.
212. In the middle of page No.52 of her cross examination, she has admitted the suggestion that as per Ex.P-40, she has mortgaged the Indiranagar property and obtained loan of Rs.30,00,000/-. She had denied suggestion that she made use of the said loan amount for her personal use.
213. To the next question that can she say for which she had used the above amount, she has answered that it is to be asked to her father. However, she has admitted the suggestion that there is no mention in Ex.P-40 that her father instructed to mortgage the property and to raise loan.
214. At the end of page No.52, she has also deposed that the loan amount was transferred to the account and she has no receipt to say that she has withdrawn the amount and gave it to their father. Her father had liability to clear. But, admittedly, no document is produced to substantiate the alleged liabilities of their father. 151 O.S.No.6086/2014
215. In page No.53, at para No.2, she had deposed that the 2nd defendant was never working. But, has denied the suggestion that 2nd defendant has no source of income. She has deposed that it may be correct to suggest that the withdrawal of Rs 10 lakh on 15.07.2001 appearing at Ex.P- 33 was prior to the sale deed at Ex.P-42. Ex.P-42 demonstrates that it is dated 29.11.2001.
216. She has denied the suggestion that on 28.11.2001, they compelled their father to issue self cheque for Rs.2,30,000/-. However, she has admitted the suggestion that the said cheque was encashed by the 2 nd defendant but deposed voluntarily that it was for Sri.B.R.Chandrashekar to meet CBI enquiry expenses. But, as noted above, they have failed to furnish the details of the alleged CBI enquiry and alleged payments running to few crores of rupees to B.R.Chandrashekhar.
217. She has admitted the suggestion that 2 nd defendant signed as witness to Ex.P-41 and she signed as witness to Ex.P-42.
218. So, it is an admitted fact and evident on record that both the sisters signed as witness to the documents of 152 O.S.No.6086/2014 the other sister as witness i.e. the 1st defendant as witness to the sale deed of the 2 nd defendant at Ex.P-42 and the 2 nd defendant as witness to the gift deed of the 1 st defendant at Ex.P-40.
219. Moreover, as noted above, it is the evidence of the 1st defendant that she gave the loan amount of Rs.30,00,000/- to her father to clear the liabilities, but she has not produced any document to substantiate the same. In addition, it is an admitted fact and evident on record that the father of the plaintiff was an aged person suffering from Alzheimer disease which affects the memory.
220. It is also pertinent to note that it is the defence of the 1st and 2nd defendants that their parents were comfortably leading their life. There is no contention in their pleadings that their father had any responsibilities that too requiring such a huge amount of Rs.30,00,000/-.
221. Moreover, it appears to the mind of the prudent man that if really the father of the plaintiff had such a responsibility to clear off and was in need of any money, he might have been mortgaged the property and raised the loan on his own and what was the necessity to transfer the 153 O.S.No.6086/2014 property in the name of the 1st defendant that too by way of gift deed to get the property mortgaged and to raise the loan and might have been executed the GPA at best in favour of the 1st defendant to get mortgaged the property and to raise the loan.
222. It is also apt to note that recitals at Ex.P-41 with regard to the reason for executing the gift deed at page No.4 reads that;
"the donor desires to gift the schedule property, to the donee as gift in consideration of natural love and affection, subject to the conditions hereinafter mentioned.....".
223. So as per the recitals of Ex.P-41, the gift deed was executed out of natural love and affection and it is also important to note that the conditions referred in the above extracted portion find no place in the subsequent recitals of Ex.P-41 as it is in the gift deeds at Ex.P-5 and 6. Therefore, if the entire evidence of the 1st defendant/DW-2 taken in a nutshell, it is clear that she went on giving answers conveniently against to the recitals at Ex.P-41.
224. So for as the sale deed at Ex.P-42 in favour of the 2nd defendant, to meet the aversions of the plaintiff, as 154 O.S.No.6086/2014 noted above, the 2nd defendant did not enter into the witness box and also not let in any independent evidence either oral or documentary. On the other hand, as observed above, the 1st defendant has deposed that the 2nd defendant was never working and the self cheque for Rs.2,30,000/- was encashed by the 2nd defendant.
225. Moreover, the documents produced by the 1 st and 2nd defendants at Ex.D-11 to 16 i.e., the certified copies of the order sheet, the plaint and the written statement in OS.2826/2017 and the order sheet, the 2 nd amended plaint and the written statement in OS.2841/2017 clearly demonstrate that the plaintiff has initiated the above suits against the 1st and 2nd defendants respectively challenging the gift deed/Ex.P-41 and the sale deed/Ex.P-42 respectively which are pending for adjudication.
226. Therefore, the entire evidence on record coupled with the facts and circumstances of the case probabalize the aversions of the plaintiff that the 1st and 2nd defendants exercised undue influence over his father in getting executed Ex.P-41/the gift deed in favour of the 1 st 155 O.S.No.6086/2014 defendant and the sale deed at Ex.P-42 in favour of the 2 nd defendant.
227. So, the entire evidence on record noted above clearly demonstrates that the gift deeds at Ex.P-5 and 6 are the products of the undue influence of the 1st and 2nd defendants over their father.
228. Moreover, it is well proposition of law that any person cannot transfer any title better than the title he has. In the present case on hand, as noted above, it is evident on record that the father of the plaintiff being the purchaser of the suit properties out of the income of the plaintiff as a benamidar holding the suit properties on his hands on behalf of the plaintiff and for the benefit of the plaintiff. Hence, he cannot transfer any right or interest or title over the suit properties either in favour of his daughters i.e., the 1st and 2nd defendants or anybody else. Accordingly, issue Nos.3 and 6 are answered in affirmative.
229. ISSUE No.4:- It is the case of the plaintiff that the partition deed at Ex.P-7 executed in between the 1 st and 2nd defendants in respect of the suit A property 156 O.S.No.6086/2014 partitioning the suit B and C properties respectively in between them is not binding on him.
230. Admittedly, the 1st and 2nd defendants are claiming their right over the suit B and C properties based on the gift deeds executed by their father in their favour i.e., Ex.P-5 and 6 respectively and it is also their case that for the better enjoyment of the said properties, they got partitioned their undivided half share in those properties by virtue of Ex.P-5 and 6 vide the partition deed at Ex.P-7.
231. As noted above, the plaintiff has not only successfully proved that the suit A property consisting of the suit B and C properties was purchased by their father under three different sale deeds out of his funds and held the same on his hands as benamidar for himself and for his benefits, has also proved that Ex.P-5 and 6 are the products of undue influence exercised by the 1 st and 2nd defendants on their father.
232. Thus, the father of plaintiff had no right and title whatsoever over the suit B and C properties to gift the same in favour of the 1st and 2nd defendants and as observed above, the gift deeds at Ex.P-5 and 6 are also the 157 O.S.No.6086/2014 products of the undue influence exercised by the 1 st and 2nd defendants.
233. Thus, viewed from any angle, the partition deed at Ex.P-7 executed in between the 1 st and 2nd defendants partitioning the properties gifted vide gift deeds at Ex.P-5 and 6 i.e., the suit A property consisting of the B and C properties is not binding on the plaintiff. Hence, this issue is answered in affirmative.
234. ISSUES Nos.5 AND 9:- As these issues require common discussions, to avoid repetitions and for the sake of convenience, they are taken together for consideration. It is the contention of the 3rd defendant that it is a bona fide purchaser of the suit A property consisting of the suit B and C properties.
235. On the other hand, the plaintiff has denied the same and with regard to these issues, he has relied on the decisions reported in;
a) MANU/KA/1458/2017 (between Shivadarshan Balse Vs. The State of Karnataka and Ors in Writ Petition No.10549 of 2008 (LR) decided on 21.02.2017 before his Lordship Ravi V. Malimath, J.) wherein he has drawn my 158 O.S.No.6086/2014 attention to the observations of the Hon'ble High Court of Karnataka at Bengaluru to the effect that;
" .........
16. The tampering of the records and the ...... ...........
(c) The land owner is a victim of fraud by the third respondent. He has been cheated. When a Court of law declares fraud, necessary consequences should flow. If the person who has been frauded is ignored, then justice has failed him. The duty of the Court is to do justice. It is a quest for truth. Having arrived at the truth and not giving any relief to the innocent person would not be rendering justice, under any circumstances whatsoever."
b) MANU/KA/1674/2018 (between S.Hareesh and Ors. Vs. The State of Karnataka and Ors in Writ Petition Nos.15967 - 15969/2017, 21196/2017, 188876/2016, 18948 - 18950/2016 (LA-BDA) and 21193 - 21195/2017 (BDA) decided on 27.04.2018 before her Ladyship B.V.Nagarathna, J.) wherein he has drawn my attention to the observations of the Hon'ble High Court of Karnataka at Bengaluru to the effect that;
" ............
90. In my view, they cannot be termed as bona fide purchasers, for they have not demonstrated as to, in what way they are the bona fide purchasers and why this land has been purchased, which was acquired and stood vested with the BDA. There have been several litigations in respect of the land in question and BDA was seeking to secure the acquired land for the purpose of allotting it to third party allottees. But alienations have been made by petitioners' 159 O.S.No.6086/2014 vendors to the petitioners. How could the petitioners ignore the fact that their respective extents of lands situated in Nagarabhavi Village had been the subject matter of acquisition and that their vendors had been unsuccessful in writ petitions filed challenging the acquisition when these facts of acquisition of land for Nagarabhavi Scheme is in the public domain and in fact, noted in their sale deeds? Therefore, notice must be imputed to the petitioners herein of the said facts. The petitioners herein ought to have made enquiries about the acquisition of land, which they sought to buy and as to whether there had been any litigation in respect of the same. Had the petitioners ascertained about the aforesaid two aspects, the truth or reality would have dawned on them. Then they may not have ventured to purchase the respective extents of the land in question. Not having done so, they cannot be considered as bona fide purchasers without notice of the acquisition process."
c) MANU/KA/1869/2016 (between Nina A. Manek and Ors. Vs. The Karnatka State Financial Corporation and Ors. in MFA.No.9877/2017 and RFA.No.2154/2007 decided on 26.07.2016 before her Ladyship B.V.Nagarathna, J.) wherein he has drawn my attention to the observations of the Hon'ble High Court of Karnataka at Bengaluru to the effect that;
"............
39. Further, during the pendency of .................... Any bona fide purchaser would have demanded the documents of title to be inspected before seeking conveyance in his/her favour even though the sale deed was being executed through a court Commissioner in an execution proceeding pursuant to a compromise decree in a suit for specific performance. In fact, a truly diligent and 160 O.S.No.6086/2014 bona fide purchaser would have demanded inspection of the title deeds of the suit schedule property even prior to entering into a compromise with defendant Nos. 2 to 4 herein. ...................
................
43. This aspect had been communicated by........ .......... Moreover, it is the duty of a bona fide purchaser for valuable consideration to demand the original title deeds and conduct a due diligence of the same before purchasing the immovable property and further, it is the duty of the vendor to handover the original title deeds to the vendee at the time of registration of the sale deed and prior thereto to permit the vendee to inspect the same. ....."
d) MANU/KA/0749/2010 (between Vasanthamma Vs. Siddaveerappa and Ors. In Regular Second Appeal No.1119 of 2014 decided on 20.04.2010 before his Lordship Subhash B. Adi, J.) wherein he has drawn my attention to the observations of the Hon'ble High Court of Karnataka to the effect that;
" ...............
22. Insofar as the provisions of Section 51 is concerned, ............... If there is no enquiry made by the defendant 8 as regards to the valid transfer of title, he cannot be held to be bona fide purchaser, for valuable consideration on the basis of defective title to attract the provisions of Section 51 of the Transfer of Property Act, 1882. Both the Courts have concurrently held that the plaintiff is not entitled for relief under Section 51 of the Transfer of Property Act."
236. There is no dispute with regard to the fact that the 1st and 2nd defendants have respectively sold the suit B 161 O.S.No.6086/2014 and C properties to the 3rd defendant vide registered sale deeds i.e., Ex.P-8 and 9.
237. It is in the cross examination of the manging partner of the 3rd defendant/DW-1 at page No.6 that he has verified the documents along with his legal consultant and obtained the legal opinion. To the next question that has he produced the legal opinion before this Court, he has answered that if it is required, he can produce, but he has not produced the same.
238. At page No.5 in para No.3, at the last line, he has admitted the suggestion that the adjoining properties of the suit properties are all developed and in page No.9 at the beginning, he has admitted the suggestion that even on the date of his deposition i.e., 29.07.2019, the suit property is a vacant land. Of course, he has deposed that they obtained the plan. But, as, there has been injunction since 2014, they did not carryout the development works over the suit property.
239. Admittedly, the plaintiff has caused a public notice about the litigation in respect of the suit property i.e., OS.No.1226/2005 in Deccan Herald, English Daily 162 O.S.No.6086/2014 dated 18.07.2007 as per Ex.P-39. Admittedly the sale deeds in favour of the 3rd defendant at Ex.P-8 and 9 are both dated 25.05.2009. Thus, the 3rd defendant purchased the suit B and C properties after the above public notice and during the pendency of the above suit in OS.No.1226/2005.
240. Moreover, though the managing partner of the 3rd defendant/DW-1 has deposed that he obtained the legal opinion, admittedly the same is not produced by him. In addition, he has also admitted in his cross-examination at page No.6 in the field of real estate, when they purchase the huge property generally they take public notice.
241. At this stage, he has voluntarily deposed that he does not remember whether any such public notice was taken or not in this case and to the suggestion that he did not take any such public notice before purchasing the suit property, he has answered that he does not remember.
242. Admittedly, the 3rd defendant is a registered partnership firm carrying on the land development activities and thus, a judicial notice can be taken that it should be so diligent while transacting that too involving 163 O.S.No.6086/2014 huge sum. Ex.P-8 and 9 demonstrates that the sale consideration in both the sale deeds are one and the same i.e., Rs.1,97,40,550/- each which is admittedly a huge amount.
243. Hence, if the above evidence of the managing partner of the 3rd defendant/DW-1 is accepted, in view of the dictum rendered in the above decisions on which the counsel for plaintiff has relied on, it is clear that the 3 rd defendant has not acted diligently while purchasing the suit B and C properties and thus, the 3 rd defendant cannot be said that it is a bonafide purchaser.
244. From the above discussions, since the 3rd defendant has purchased the suit B and C properties from the 1st and 2nd defendants who had not got the valid and legal title over the same as their title deeds at Ex.P-5 and 6/the gift deeds are the products of their undue influence over their father who had no legal and valid title over the same as he had purchased those properties out of the funds of the plaintiff as benamidar and hold the same on his hands on behalf of the plaintiff for his/the plaintiffs benefits, the plaintiff is successful in establishing that the 164 O.S.No.6086/2014 sale deeds at Ex.P-8 and 9 are not binding on him. Hence, issue No.5 is answered in affirmative and issue No.9 in negative.
245. ISSUE No.10:- This is with regard to the limitation to file this suit and with regard to this issue, in his written arguments, the counsel for plaintiff has relied on the decisions reported in;
a) (2003)8 SCC 319 (between Ram Chandra Singh Vs. Savitri Dvi and Ors. In Civil Appeal Nos.8216 and 8217 of 2003 (arising out of SLP (Civil) Nos.6535 of 1999 and 20273 of 2000 decided on 09.10.2003 before their Lordships V.N.Khare C.J. and S.B.Sinha J.) wherein he has drawn my attention to the observations of the Hon'ble Apex Court to the effect that;
"...
24. An act of fraud on Court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would, render the transaction void ab initio. Fraud and deception are synonymous."
b) AIR 1994 SC 853 (between S.P.Chngalvaraya Naidu (Dead) by LRs. Vs. Jagannath (Dead) by LRs. and Ors. in Civil Appeal No.9994 of 1972 decided on 165 O.S.No.6086/2014 27.10.1993 before his Lordship Kuldip Singh J) wherein he has drawn my attention to the observations of the Hon'ble Apex Court to the effect that;
" ....
8. The facts of the present case ..... A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage......"
246. The plain reading of the above observations demonstrate that they are with regard to the act of fraud, collusion, conspiracy etc., and thus, those decisions are not connected to the issue on hand i.e., on limitation.
247. So far the present issue, it is the contention of the 1st and 2nd defendants that the claim of the plaintiff is barred by time. The plaintiff was not at all in possession of the suit properties at any point of time and it is the contention of the 3rd defendant that the suit is hopelessly barred by limitation.
248. Admittedly, the suit is for declaration, possession and permanent injunction and the suit property is an immovable property and thus, the limitation to file the suit is 3 years.
166 O.S.No.6086/2014
249. It is in the plaint that the plaintiff came to know for the first time, the execution of the alleged two gift deeds both dated 30.12.2003 and partition deed dated 25.08.2006 as well as the two sale deeds dated 25.05.2009 when he obtained the copies of the same on 30.06.2014 and 02.07.2014.
250. As per the plaint averments, the cause of action for the suit arose on 16.08.1993, on 25.02.1994 and on 18.01.2002 when his father purchased the suit A property from his funds; on 17.01.1998 when his father executed his WILL bequeathing all his movable and immovable properties in his favour; on 30.12.2003 when his father allegedly executed the gift deeds in favour of the 1 st and 2nd defendants; on 25.08.2006 when 1st and 2nd defendants allegedly partitioned the suit A property into the suit B and C properties; on 25.05.2009 when the 1 st and 2nd defendants sold the suit B and C properties to the 3 rd defendant; on 15.04.2014 when his father died; on 30.06.2014 and 02.07.2014 when he came to know the execution of the said gift deeds, partition deed and the sale 167 O.S.No.6086/2014 deeds for the first time and on various dates when the defendants are attempting to alienate the suit properties.
251. The record reveals that the present suit is filed on 08.08.2014. It is well settled principle of law that for the purpose of cause of action, the plaint averments shall be taken into consideration. The plain reading of the plaint averments observed above demonstrate that the suit is well within the limitation from the date of the cause action averred in the plaint.
252. It is the arguments of the counsel for plaintiff that the 1st defendant/DW-2 has deposed that she has "no idea" when asked that Ex.P-5 to 7 were executed when the plaintiff was in USA and Ex.P-5 to 7 were obtained before filing the suit.
253. It is also the arguments of the counsel for plaintiff that in his cross-examination also, the plaintiff/PW-1 has clearly deposed that only on the death of his father and when he obtained the copies, he came to know about the alleged gift deeds and he was unaware about the same in the year 2005.
168 O.S.No.6086/2014
254. The above oral evidence of the plaintiff and the 1st defendant is apparent on the face of record. Ex.P-5 to 7 i.e, the certified copies of the alleged gift deeds and the partition deed demonstrate that the copies were applied on 01.07.2014 and the same were delivered on 02.07.2014.
255. At this stage, it is also pertinent to note that the certified copies of the sale deeds dated 25.05.2009 at Ex.P- 8 and 9 were applied on 28.06.2014, the copies were prepared on the same date and were delivered on 30.06.2014.
256. So, the oral evidence of the plaintiff and the documents at Ex.P-5 to 9 are in support of the case of the plaintiff with regard to his knowledge i.e., the cause of action averred in the plaint and nothing has been let in by the defendants to discard the same.
257. On the other hand, as noted above, even the 1 st defendant/DW-2 has deposed in her cross examination that she has no idea with regard to the fact suggested that when Ex.P-5 to 7 were executed, the plaintiff was in America, it is the very pleadings of the 1 st and 2nd defendants that the plaintiff was out of Bengaluru from 169 O.S.No.6086/2014 1987 and out of India since July-1989 and they have also specifically pleaded that the plaintiff was out of Bengaluru at the time of purchase of the schedule A-1, A-2 and A-3 i.e., the suit A property i.e., from 1999 to 2002.
258. So, viewed from any angle, there is nothing on record to disbelieve the plaint averments with regard to the cause of action averred in the suit and thus, the suit is well within limitation. Accordingly, the defendants have failed to establish that this suit is barred by limitation. Hence, this issue is answered in negative.
259. ISSUE No.11:- It is the defence of the defendants that the suit is not properly valued and the court fee paid is insufficient. It is the specifi plea of the 1 st and 2nd defendants that the market value of the properties as on the date of filing of the suit was more than Rs.10 Crores.
260. It is in the plaint at para No.69 that the suit is valued at Rs.7,95,74,200/- and the court fee paid is Rs.6,04,996/-. The valuation slip filed by the plaintiff demonstrates that the 1st and 2nd reliefs are declaration of title over the suit B and C properties and the consequential 170 O.S.No.6086/2014 relief of possession thereof. To value these reliefs the provision invoked by the plaintiff is Section 24(a) of the Act which is extracted here below;
"24. Suits for declaration.- In a suit for declaratory decree or order, whether with or without consequential relief, not falling under Section 25.-
(a) where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property or on (rupees one thousand ) whichever is higher;
..."
261. Admittedly, Section 25 of the Act deals with Adoption suits. The plaintiff has valued the 1 st and 2nd reliefs at Rs.1,97,40,550/- each i.e., the sale consideration amount shown in the registered sale deeds dated 25.05.2009 executed by the 1 st and 2nd defendants respectively in favour of the 3 rd defendant i.e., Ex.P-8 and
9.
262. Of course, as noted above, the present suit is filed on 08.08.2014 i.e., after around 5 years from the date of the above sale deeds. But, the defendants in particular the 1st and 2nd defendants have not let in any evidence to substantiate their contention that the market value of the suit properties was more than Rs.10 crores as on the date 171 O.S.No.6086/2014 of filing the suit. Hence, there is nothing on record to say that the plaintiff has not valued these reliefs property and paid the proper court fee.
263. The 3rd and 4th reliefs are for cancellation of the gift deeds both dated 30.12.2003 executed by the father of the plaintiff in favour of 1 st and 2nd defendants and the provision invoked by the plaintiff for valuation of these reliefs is Section 38(1) of the Act which is extracted here below;
"24. Suits for cancellation of decrees, etc.- (1) In a suit for cancellation of 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 mater of the suit, and such value shall be deemed to be -
if the whole decree or other document is ought to be canceled, the amount or value of the property for which the decree was passed other document was executed;
if a part of the decree or other document is sought to be canceled, such a part of the amount or value of the property.
(2) If the decree or other ..... ... "
264. The plaintiff has valued these reliefs for Rs.1,52,500/- each i.e., the value shown in the gift deeds 172 O.S.No.6086/2014 at Ex.P-5 and 6. Thus, prima facie, the plaintiff has rightly valued these reliefs under Section 38(1) of the Act and paid the proper court fee.
265. The 5th relief is for the cancellation of the partition deed dated 25.08.2006 and the provision invoked for valuation is Section 38(1) of the Act and the plaintiff has valued this relief for Rs.3,05,000/- i.e., the value shown in the partition deed at Ex.P-7. Hence, prima facie this relief is also valued properly and the court fee paid thereon is also proper.
266. The 6th and 7th reliefs are for cancellation of the registered sale deeds both dated 25.05.2009 i.e., Ex.P-8 and 9 and the plaintiff has valued these reliefs under Section 38(1) of the Act for Rs.1,97,40,550/- each i.e., the sale consideration shown in those registered sale deeds. Thus, the valuation of these reliefs are also proper and the court fee paid thereon is sufficient.
267. The 8th and 9th reliefs are for permanent injunctions restraining the defendants from interfering his peaceful possession and enjoyment of the suit properties and from alienation of the suit properties to third parties. 173 O.S.No.6086/2014 The plaintiff has valued these reliefs under Section 26(c) of the Act for Rs.1,000/-. Section 26(c) of the Act reads;
"26.Suit for injunction.- In a suit for injunction.-
(a) where the ....
(b) (omitted)
(c) in any other case, whether the subject-matter of the suit has a market value or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees (one thousand) whichever is higher."
268. Since the right of the plaintiff for permanent injunction cannot be valued in terms of money, the relief sought for permanent injunction is rightly valued by the plaintiff at Rs.1,000/-.
269. Thus, it is clear that the plaintiff has properly valued the these reliefs as well and paid the proper court fee. Thus, the defendants have failed to prove that the suit is not properly valued and the court fee paid thereon is not sufficient. Hence, this issue is answered in negative.
270. ISSUES Nos.2 AND 12:- As these issues are with regard to the reliefs sought in the suit, they are taken together. In view of answering issue Nos.1, 3 to 6 in affirmative and issue Nos.7 to 9 in negative, the plaintiff is 174 O.S.No.6086/2014 entitled for the possession of the suit B and C properties and also the other reliefs sought in the suit. Hence, these issues are answered in affirmative.
271. ISSUE No.13:- In view of my findings on issue Nos.1 to 6 and 2 in affirmative and issue Nos.7 to 11 in negative, I proceed to pass the following order.
ORDER Suit of the plaintiff is decreed with costs. In the result, it is declared that the plaintiff is the absolute owner of the suit A schedule property consisting the suit B and C schedule properties and entitled for the possession thereof.
Consequently;
a) the registered gift deeds in favour of the 1 st and 2nd defendants executed by their father both dated 30.12.2003 bearing the document Nos.27049/2003-2004 and 27050/2003-04 respectively both stored in CD.No.154 of Book No.I in the office of the Sub Registrar, Kengeri, Bengaluru,
b) the registered partition deed entered into between the 1 and 2nd defendants dated 25.08.2006 in document st No.KEN-1-19572-2006-07 stored in CD.No.KEND322 of Book No.I in the office of the Sub Registrar, Bengaluru; and
c) the registered sale deeds executed by the 1 st and 2nd defendants in favour of the 3rd defendant respectively in respect of the suit B and C schedule properties both dated 25.05.2009 in document Nos.BSK-1-00831-2009-2010 and BSK-1-00832-2009-2010 both stored in CD.No.BSKD40 of book No.I in the office of the Sub 175 O.S.No.6086/2014 Registrar, Banashankari, Bengaluru, are declared as illegal and not binding on the plaintiff.
In the result, the defendants shall deliver the vacant possession of the suit A schedule property consisting the suit B and C schedule properties to the plaintiff within 60 days from today.
Draw a decree accordingly.
(Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced in the open Court on this the 31st day of July 2020).
(K. KATHYAYANI), LXVI Addl.CC & SJ, Bengaluru.
ANNEXURE
1. List of witnesses examined for plaintiff:
P.W.1: R.Rajashekar
2. List of documents marked for Plaintiff:
Ex.P1: The certified copy of the WILL dated 17-01-1998 Ex.P.2: The certified copy of Death Certificate of mother of Plaintiff.
Ex.P.3: The certified copy of the WILL dated 17-01-1998.
Ex.P.4: The death certificate of father of Plaintiff. Ex.P.5: The certified copy of the Gift Deed dated 30.12.2003 Ex.P.6: The certified copy of the Gift Deed dated 30.12.2003.
Ex.P.7: The certified copy of the Partition Deed dated 25-08-2006.
Ex.P.8: The certified copy of the Sale Deed dated 25-05-2009.
176 O.S.No.6086/2014Ex.P.9: The certified copy of the Sale Deed dated 25-05-2009.
Ex.P.10: Certified copies of Judgment and Decree O.S.1226/2005.
Ex.P.11: A Letter written by father of Plaintiff. Ex.P.12: Postal cover.
Ex.P.13: The Income Statement of father of Plaintiff.
Ex.P.14: The certified copy of G.P.A dated:
03.07.1998 executed by father of Plaintiff. Ex.P.15: Certified copy of the Revocation Deed dated 21-08-2003.
Ex.P.16: The certified copy of the Order Sheet in O.S.No.1226/2005.
Ex.P.17: The certified copy of Letter written by attorney to the Defendants.
Ex.P.18: Certified copies of 3 Postal
Acknowledgments.
Ex.P.19: Certified copies of 2 summons issued to defendant in OS.No.1226/2005.
Ex.P.20: Certified copy of the Gift Deed dated 02-03-2005.
Ex.P.21: The certified copy of the Written Statement filed by the defendants in O.S.1226/2005.
Ex.P.22: Certified copy of the Agreement of Sale dated 05-02-1999.
Ex.P.23: Certified copy of the Release Deed dated:
01-09-1999 Ex.P.24: Certified copy of the Release Deed dated:
01-09-1999.
Ex.P.25: Certified copy of the Release Deed dated 17-09-1999.
Ex.P.26: Certified copy of the Gift Deed dated 11-03-2003.
Ex.P.27: Certified copy of Gift Deed dated 11-03-2003 Ex.P.28: Certified copy of Gift Deed dated 11-03-2003 177 O.S.No.6086/2014 Ex.P.29: Certified copy of Statement of Accounts dated 21-06-2014 pertaining to Canara Bank (A/c No.16288) Ex.P.30: Certificate issued by Canara Bank pertaining to Account No.16288.
Ex.P.31: Statement of Accounts dated 24-06-2014 pertaining to (Account No. 166808). Ex.P.32: Certificate issued by Canara Bank pertaining to Account No.16288 issued certificate Account No.166808.
Ex.P.33: Statement of Account dated 21-06-2014 pertaining to (Account No.16287) Ex.P.34: Certificate issued by Canara Bank pertaining to Account No.16287 issued certificate account No.16287.
Ex.P.35: Certificate issued by Canara Bank pertaining to Account No.16287 issued certificate Account No.16287.
Ex.P.36: Certified copy of the Sale Deed dated 16-08-1993.
Ex.P.37: Certified copy of the sale Deed dated 25-02-1994.
Ex.P.38: Certified copy of the sale deed dated 18-01-2002 Ex.P.39: Advertisement in Deccan Herald for public view.
Ex.P.40: Certified copy of Memorandum of Mortgage Deed dated 18-09-2012.
Ex.P.41: Certified copy of Gift Deed dated:
15.4.2004 Ex.P.42: Certified copy of Sale Deed dated:
29.11.2001.
3. List of witnesses examined for Defendants:
D.W.1: Vipulkumar S/o Sri. Vinodkumat.
D.W.2: T.R.Nirmala
4. List of documents marked for Defendants:
Ex.D1: Original Gift Deed dated: 13/12/2003 in favor of Sri T.R.Jemini.
Ex.D2: Original Gift Deed dated: 13/12/2003 in favor of Smt.T.R.Nirmala.178 O.S.No.6086/2014
Ex.D3: Certified copy of the Rectification Deed dated: 30/06/2009.
Ex.D4: Certified copy of the Sale Deed dated 25/05/2009.
Ex.D5: Certified copy of the Rectification Deed dated: 30/06/2009.
Ex.D6: Certified copy of the Sale Deed dated:
25/05/2009
Ex.D7: Tax paid receipt.
Ex.D8: Certificate dated: 11/07/2019.
Ex.D9: Certified copy of Assessment Register
Extract.
Ex.D10: Approved Plan of the suit properties. Ex.D11: Certified copy of the Order Sheet in O.S.No.2826/2017.
Ex.D12: Certified copy of the Plaint along with verifying affidavit in O.S.No. 2826/2017. Ex.D13: Certified copy of the W.S., along with verifying affidavit in O.S.No.2926/2017. Ex.D14: Certified copy of the Order Sheet in O.S.No.2841/2017.
Ex.D15: Certified copy of the 2nd Amended Plaint in O.S.No.2841/2017, Ex.D16: Certified copy of the W.S., in O.S.No.2841/2017.
Ex.D17: Colour Photo.
Ex.D18: Letter Written by the Plaintiff to his father.
(K. KATHYAYANI), LXVI Addl.CC & SJ,Bengaluru The VC could be connected at 3:30 p.m. The respective counsels for the plaintiff and the 3rd defendant did not appear through VC.
The counsel for the 1st and 2nd defendants appeared through VC.179 O.S.No.6086/2014
Perused the record.
The colour photo and the letter confronted to the plaintiff in his cross examination on 16.10.2019 are exhibited as Ex.D-17 and 18 respectively. However, it is found that in the cross examination of the plaintiff at paras Nos.2 and 3 at page No.61, due to over sight, it is typed as Ex.D-11 and 12. Hence, to avoid unnecessary ambiguity, office is directed to make the necessary corrections.
The Judgment is pronounced in the open Court (vide separate Judgment).
ORDER LXVI Addl.CC & SJ, Bengaluru