Bangalore District Court
Saleema Bi vs Zaibunnissa on 30 July, 2024
1 O.S.No.8601/2012
KABC010230812012
IN THE COURT OF THE XII ADDL. CITY CIVIL JUDGE,
AT BENGALURU
Dated this the 30th day of July, 2024
PRESENT: SRI. GANGADHARA.K.N., B.A.,LLM.,
XII ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH.No.27), BENGALURU
O.S.No.8601/2012
PLAINTIFF : Saleema Bi,
W/o. M.A. Shukkur,
aged about 49 years,
R/o. No.148-A, 2nd Main,
4th Cross, Prakash nagar,
Bengaluru.
(By Sri.M.V.S. Advocate)
VS.
DEFENDANTS : 1. Zaibunnissa,
aged about 85 years,
W/o. Late Abdul Rahim Sab,
No.46, 2nd Main Road,
Seshadripuram,
Bengaluru.
2. B.A. Rahamathulla,
aged about 39 years,
2 O.S.No.8601/2012
S/o. Late Abdul Rahim Sab,
No.46, 2nd Main Road,
Seshadripuram,
Bengaluru.
By Sri.S.A. Advocate
Date of Institution of the : 05/12/2012
suit
Nature of the suit : Declaration
Date of commencement of : 01/07/2017
recording of the evidence
Date on which the : 30/07/2024
Judgment was pronounced
Total Duration Years Months Days
11 07 25
(GANGADHARA.K.N.)
XII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
The plaintiff's suit for declaration to declare her as absolute owner by virtue of oral gift dated 20/2/2004 executed by defendant No.1 in her favor, also executed confirmation of oral gift under the documents dated 3 O.S.No.8601/2012 21/2/2004 and 5/8/2005 and to declare the gift deed dated 21/12/2010 executed by 1st defendant in favour of 2nd defendant as illegal, null and void and also to hold that the plaintiff is having the possession of the basement floor in the suit property by virtue of oral gift and sought the delivery of possession of remaining portion of the building, consequently sought an injunction to restrain the defendants from dispossessing the plaintiff from the suit schedule property and restraining them to not to alienate or encumber the suit schedule property.
2. The brief facts of the plaintiff's case is as follows :-
The plaintiff and defendant No.2 are the daughter and son respectively of the 1st defendant. It is the 1st defendant was the absolute owner of suit schedule property bearing Municipal No.46, 2nd main Road, Seshasdripuram, Bengaluru, measuring east to west 45 feet, north to south 15 feet. Husband of the of defendant 4 O.S.No.8601/2012 No.1 died on 1/6/1982 by leaving his huge family back of him by consisting of his wife, in all 9 children. Thus defendant No.1 had the huge responsibility to perform the marriage of her 5 daughters and to maintain the family. Thus she raised a mortgage loan from Malleshwaram Co-operative Bank. To clear their liability they have sold the J.P. Nagar property in the year 2002. The marriage of the plaintiff has been performed with one M.A. Shukkur, who had running the advertisement business in the name and style of EZRA Arts. Her contention is that, her husband was very compassionate to help the maternal family of the plaintiff. When such was the situation, the plaintiff and her husband by investing Rs.1,70,000/- repaired the suit schedule property. In fact the building in the suit property was aged about 80 years, there was a crack, seepage. Tenants were vacating. Thus there was a liability on the part of the defendant No.1 to clear of Rs.2,06,000/- against the security deposit, she contended that, even 5 O.S.No.8601/2012 said money being paid her. Its her further allegations is that, the defendant No.1 had no financial resources, she had to demolish the old building in the suit property to put up a construction. When such being the case, she gave an offer to the plaintiff stating that she would gift the suit schedule property in her favour on condition that she shall develop the same, thereafter she shall allot one dwelling into the defendant no.1 for her residence. The plaintiff contended that, she had accepted the offer of her mother, after consulting her husband. In this regard even defendant No.1 deliberated with her other children, who have consented to gift the suit schedule property in favor of the plaintiff. Accordingly on 20/2/2004 defendant No.1 allegedly made a oral declaration to gift the suit schedule property to the plaintiff, which was accepted by the plaintiff. On 21/2/2004 defendant No.1 allegedly reduced the said oral gift into writing, for which even defendant No.1's other children have signed to it as an attesting witness. Thus, she is claiming that by way 6 O.S.No.8601/2012 of said oral gift and subsequent declaration confirming the said oral gift, she became an absolute owner of suit property. Thereafter the plaintiff and her husband demolished the old building in the suit schedule property have put up the construction by borrowing the loan from the bank. She claims to have commenced the construction in the year 2006. Plan got approved from the competent authority, though they approached the the Malleshwaram Co-operative Bank by seeking construction loan, but who insisted the plaintiff to get the registered sale deed of suit property from the defendant no.1 to grant such loan. But, the plaintiff was not inclined to do so on the ground that they are costly affair. With having no other option the plaintiff and her husband allegedly borrowed heavy loan from a private parties on a monthly interest and completed the construction. For She contended that, she could not get the khatha in her name, as the defendant no.1 had availed the loan on the suit property by mortgaging the 7 O.S.No.8601/2012 same and depositing the title deeds. The plaintiff further alleged that, the defendant No.1 availed the loan of Rs. 8 Lakhs with out her knowledge and consent, by giving declaration that she has the only son named Samiulla, who is the defendant No.2 herein. In fact, the defendants gave a representation to the banker stating that they are the only family members. By knowing the said fact, when elder son of the defendant No.1 contacted her and sought an explanation on her declaration given to the banker, for which she stated that as the defendant No.2 was pressuring her that if she could not get the loan for him, threatened to commit suicide.
3. The plaintiff after completion of her construction claims to have accommodated the defendant No.1 in the top floor of the building. In the meantime the defendant No.1 was under the financial distress, as her creditors were pressuring on her to repay the same, in this regard they were causing bickering in front of the suit schedule property, in this regard the plaintiff claims 8 O.S.No.8601/2012 to have permitted the defendant no.1 to raise mortgage loan of Rs. 24 Lakhs on the suit property, with a condition that the defendants shall alone repay the same, after clearing of the loan, the original documents of the suit property shall be returned her.
4. With regard to the possession of the suit property is concerned, the plaintiff contended that, in the ground of the building, her husband was running a digital printing business, first floor was used for storing the printing materials and rest of the premises were rented out to the tenants and they are in possession of the said property. When such being the fact, the plaintiff allegedly noticed that on 21/02/2010 1st defendant had gifted the suit schedule property in favor of the defendant No.2 herein. Thus the plaintiff contended that, as the defendant No.1 had gifted the suit schedule property in her favour, thus the defendant no.1 had no authority to gift the same in favour of the 2 nd defendant and on 15th and 16th of June 2011 defendant No.1 and 2 along with 9 O.S.No.8601/2012 their henchmen by break opening the lock committed the theft of flex and other materials and caused loss worth of Rs.5 lakhs and dispossessed the plaintiff and her husband from the first floor of the suit property and committed the offence of lurking of house trespass, in that regard a criminal case came to be lodged. It is the plaintiff contended that it is the plaintiff and her husband have constructed the building in the suit property by investing huge money and they are in possession of the suit property. As the defendant no.1 though she had no authority to gift the suit property in favor of the defendant no.2, which is without having any authority, thus alleged that there was a cause of action to file the present suit for declaration to declare her as absolute owner of the suit schedule property by virtue of oral gift deed dated 20/2/2004 and same was confirmed by writing on 21/2/2004 and 5/8/2005 which is binding on the defendant No.1 and consequently declare that the gift deed dated 21/2/2010 executed by defendant No.1 in 10 O.S.No.8601/2012 favour of defendant No.2 is illegal, nullity and it shall be cancelled and also consequently to declare that it is the plaintiff is in possession of the basement floor of the suit schedule property by virtue of oral gift and sought the possession of remaining portion of the suit schedule property, consequently sought the injunction restraining the defendants from dispossessing the plaintiff from the suit schedule property.
5. The defendant No.1 and 2 who are the mother and son have filed their written statement jointly contending that the plaintiff filed the false suit and suppressed the material facts and contended that defendant No.1 married with Abdul Rahim, with their marriage 10 children were born, among them 4 sons and 6 daughters. Defendant No.1's husband died 30 years ago, defendant No.1 sold the J.P. Nagar property and shared the consideration among her 9 children except to the defendant No.2. Defendant no.1 was the absolute owner of suit schedule property, as it was her self 11 O.S.No.8601/2012 acquired property acquired under the relinquishment deed dated 27/11/1965 executed by one Smt. Fathima Bi. The defendants contended that, the defendant No.1 with the assistance of defendant No.2 raised the loan and put up the 3 floor building in the suit schedule property. Except 3rd floor portion in the suit building, all the premises therein are let out to the tenants. The Defendant No.1 contended that, she had gifted the suit property on 21/12/2010 with condition that defendant No.2 shall clear of her loan availed from the bank for the construction. As such defendant No.2 has got all the revenue documents in his name. In the month of June 2009 husband of the plaintiff approached the defendant No.1 by requesting to lease the ground floor portion on rental basis, accordingly leased to him by entering into the rental agreement dated 26/6/2009 inducted the plaintiff's husband as tenant. In the year 2010 the husband of the plaintiff vacated from the first floor house, now the said portion has been leased to one 12 O.S.No.8601/2012 H.Nagesh, who is practicing counsel. On 2/8/2011 the 2 tenants namely Das Promotion and H.R. Corporation have placed the legal notice issued by the plaintiff before the defendant No.2 stating that demanded the tenants of the defendant No.1 to vacate from the suit property and hand over the possession to her. After verification the defendant No.2 found that the plaintiff got created the 2 documents dated 5/8/2005 and 28/2/2004 in the name and style as declaration confirming the oral gift. Thus, the defendant No.1 alleged that she at no point of time signed or executed such document in favour of the plaintiff, as she never appeared before the notary Public to execution. They further alleged that, the plaintiff with intent to knock away the property of the defendant No.1 by forging her signature had created those documents. In this regard the defendant No.2 filed the complaint in P.C.R.No.22791/2011 against the plaintiff and her husband Shukkur and also against the notary public named M.C.Uttappa having roll No.8689/1988. 13 O.S.No.8601/2012
6. The defendants further contended that, on the security of the suit property the defendant no.1 availed a loan on 6/10/2010, for which her all children including the plaintiff are signed, by declaring that its the defendant no.1 is the absolute owner of the suit property,thus they have objection to sanction mortgage loan on the suit property. In this regard, on 12/11/2010 the defendant No.1 alleged have executed the registered deposit of title deeds in favour of the Malleshwaram Co- operative Bank Ltd., Later the Malleshwaram Co- operative Bank has raised a dispute under section 70 of KCS Act, against the defendant No.1 and others for non repayment of loan availed by mortgaging the suit property. Thereafter she by clearing of the loan, claims to have obtained no due certificate from the banker and got released the documents. Its their contention is that, if at all the defendant No.1 had gifted the suit property in favour of the plaintiff, in that event she and her brothers and sister would not have signed before the banker by 14 O.S.No.8601/2012 declaring that its the defendant no.1 is the absolute owner of the suit property.
7. The defendant No.1 and 2 have contended that, defendant No.1 had put up the construction in the suit schedule property, said construction has been completed in the year 2009 by spending an amount of Rs.34 lakhs, out of which the plaintiff's husband had lent Rs.22 lakhs in installment to clear of the same. The defendant No.1 availed Rs.10 lakhs from the Malleshwaram Co-operative Bank Ltd., to clear of part loan amount she had paid Rs.8,50,00/- to the husband of the plaintiff. After completion of the construction, again the said bank sanctioned Rs.14 lakhs, thereafter she paid Rs.11,50,000/- and further paid Rs.1,40,000/- by way of cash. By doing so, the defendants have cleared entire loan liability to the plaintiff's husband. The defendant No.1 had out rightly denied on executing any such document named as confirmation of oral gift as alleged by the plaintiff herein. The defendants contended 15 O.S.No.8601/2012 that the alleged confirmation of oral gift executed before the notary public is a created document by forging her signature. Thus the defendants have filed the criminal complaint before the jurisdictional Magistrate in PCR No.2279/2011 for the offences punishable under Sections 120B, 420, 464, 465, 466, 468 r/w. Section 34 of IPC. The police by investigating the case have filed the charge sheet, now the case is numbered as C.C.No.9010/2013. In fact, they have denied placing their appearance before the notary public to execute such document. Their question is that, if at all the defendant No.1 had given the property in her favour by oral gift, later on executing the confirmation deed, the plaintiff would have got the revenue documents in her name, otherwise in the year 2010 the defendant no.1 while availing the mortgage loan, all her children have opened nominal bank account with Malleshwaram Co-operative Bank, and they have given a confirmation to the banker stating that it is the defendant No.1 is the absolute owner 16 O.S.No.8601/2012 of suit property, thus they have no objection to sanction loan to her. If the plaintiff was the owner by virtue of gift deed, she would not have executed such documents in favour of the banker.
8. The defendants have denied the plaint averments in particularly, after death of husband of the defendant No.1, their family was in financial distress, they were having huge debts, they were suppose to perform the marriage of 3 daughters and sons they were in in due to paying the refund of security deposit to the tenants in the suit property and sale of the J.P.Nagar property for clearing of existing loan. In fact the defendants have contended that the defendant No.1's two elder sons were earning working in Silk weaving factory, earning sufficient money and J.P. Nagar property was sold and shared the consideration among the 9 children o the defendant No.1 except to the defendant No.2 and it is the defendant No.1 had constructed the building in the suit property.
17 O.S.No.8601/2012
9. It is the defendants admitted that the plaintiff's husband had started EZRA Arts in the ground floor of the suit schedule property and later the defendant No.2 and the plaintiff's husband to start M.M.Digital Flex business opened the shop in the first floor, but the plaintiff's husband had not paid any profit earned out of it, not even ready to pay the rent and security deposit as agreed under the rental agreement. Thus they have evicted him from the said portion, now let out to some other tenant.
10. They contended that the defendant No.1 who was the absolute owner of suit property had gifted the same in favour of the defendant No.2, who had the revenue documents entered in the jurisdictional authority and he is in possession and enjoyment of the same.
11. By considering the pleadings of the parties this court was pleased to frame the following issues :-
1. Whether the plaintiff proves that she is the absolute owner of the suit schedule property by 18 O.S.No.8601/2012 virtue of oral gift deed dated 20/2/2004 made by 1st defendant in her favour and subsequently confirmed in writing on 21/2/2004 and 5/8/2005?
2. Whether the plaintiff proves that the gift deed dated 21/12/20210 executed by the 1st defendant in favour of 2nd defendant is illegal and liable to be canceled?
3. Whether the plaintiff is entitled for possession of the entire suit schedule property?
4. Whether the plaintiff proves the alleged interference on her possession of the suit schedule property by the defendants?
5. Whether the defendants prove that the alleged oral gift deed dated 20/2/2004 and confirmation letters dated 21/2/2004 and 5/8/2005 are the result of fraud, misrepresentation by the plaintiff?
6. What order or decree?19 O.S.No.8601/2012
12. The plaintiff in order to prove her case, examined in all 8 witnesses as P.W.1 to 8 and in all produced in all 13 documents which were marked as Ex.P.1 to 13. On behalf of defendants DW.1 and DW.2 were examined and in all produced 20 documents, which were got marked as Ex.D1 to D20.
13. Heard the arguments of the learned counsel for for the plaintiff and defendant No.1.
14. My finding on the above issues are :-
Issue No.1: In the negative Issue No.2: In the negative Issue No.3: In the negative Issue No.4: In the negative Issue No.5: Partly in the affirmative Issue No.6: As per final order, for the following:-
REASONS
15. Issue No.1, 2 & 5 : Since all three issues are interconnected, in order to avoid repetition of facts and evidence, thus they are taken up for common discussion. 20 O.S.No.8601/2012
16. It is not in dispute that the suit schedule property presently bearing No.46, old No.45, earlier No.104, South Central Road, 2nd Main Road, Bengaluru 560020, measuring East to West 45 feet, North to South 15 feet was the absolute property of the defendant No.1, who has got the said property from her maternal home by way of registered release deed.
17. It is not in dispute that the defendant No.1 married one Abdul Rahim Sab, with their marriage 6 daughters and 4 sons were born and defendant No.1's husband died long back approximately in the year 1988 and he himself had left a property at J.P. Nagar, and suit schedule property stands in the name of defendant No.1.
18. The plaintiff is a daughter, defendant No.2 is a son of a defendant No.1. The plaintiff approached this Court by seeking relief of declaration to declare that she is the absolute owner of suit schedule property by virtue of oral gift dated 20/2/2004 gifted by the defendant No.1 21 O.S.No.8601/2012 in favour of her, further it has been confirmed under the written document dated. 21.2.2004 under which she confirmed her oral gift of suit property made in her favor. Again the defendant no.1 allegedly executed another declaration cum confirmation oral gift by executing the document dated 5/8/2005 before the notary public. Thus, she contended that as the defendant No.1 gifted the said property orally, delivered the possession, on which plaintiff and her husband by investing huge money allegedly have put up the construction of mult storied building, by letting the other portion in favor of the tenants, claims to be in possession of portion of the ground floor and she had allowed the defendant No.1 to live in the last floor of the building. Further, alleged that, its the defendants with intend to deprive her right, title and interest, the defendant no.2 by meddlaing with the defendant no.1 managed to got the registered gift deed dated 21/12/2010. Thus the plaintiff's contention is that, as the defendant No.1 had gifted the suit schedule 22 O.S.No.8601/2012 property long back on 20/2/2004 itself, same has been confirmed by executing 2 other documents, as on 21/12/2010 the defendant No.1 had no right to execute the gift deed of suit property in favour of defendant No.2. Thus she sought the relief to declare the said gift deed as illegal, nullity and it should be canceled.
19. But the defendants by filing their written statement out rightly denied the case of the plaintiff as false, except admitting the relationship and receipt of some amount from the plaintiff and her husband to put up the construction in the suit property. They have termed case of the defendant No1 in claiming right over the suit property by virtue of oral gift and allegation of executing the two written documents by the defendant no.1 confirming such oral gift as created and bogus, as the defendant no.1 had not intention to give the suit property under gift nor had it been given by her in any manner.
23 O.S.No.8601/2012
20. In that background the plaintiff had let her evidence and produced the documents and the defendant No.1 and 2 have cross examined her. Even the defendant No.2 and defendant No.1 have examined respectively as DW.1 and 2, even they have produced the documents.
21. After perusal of the pleadings and examining the documents produced by the parties carefully, it is not in dispute that parties of the suit are belongs to Mohammedan religion. It is not in dispute that in the Mohammedan religion the oral gift is legally recognized, but with the conditions. To that effect the decision relied upon by the defendant during his arguments is placed herein to have clarity and position of law in Mohammedan law. The Hon'ble Apex Court in Hafeeza Bibi & others Vs. Shaikh Farid (Dead) by LRs and others, wherein at para-29 it is held as follows :-
In our opinion, merely because the gift is reduced to writing by a Mohammadan instead of it having been made orally, such writing does not become a formal 24 O.S.No.8601/2012 document or instrument of gift. When a gift could be made by Mohammadan orally, its nature and character is not changed because of it having been made by a written document. What is important for a valid gift under Mohammadan Law is that three essential requisites must be fulfilled. The form is immaterial. If all the three essential requisites are satisfied constituting valid gift, the transaction of gift would not be rendered invalid because it has been written on a plain piece of paper. The distinction that if a written deed of gift recites the factum of prior gift then such deed is not required to be registered but when the writing is contemporaneous with the making of the gift, it must be registered, is inappropriate and does not seem to us to be in conformity with the rule of gifts in Mohammadan Law.
22. In another decision in case of Rasheeda Khaatoon (D) through LRs Vs. Ashiq Ali S/o. Lt. Abu Modh (D) through LRs, the Hon'ble Apex held at para- 24 as under :
From the aforesaid it is vivid that the possession can be shown not only by enjoyment of the land or premises in question but also by asserting who has the actual control over the property. Someone may be in apparent occupation of the premises, but the other 25 O.S.No.8601/2012 would have control and gaining advantage of possession. In the case at hand plea of actual physical possession by Rasheeda Khatoon does not deserve acceptance. The existence of any overt act to show control requires to be scrutinised. A plea was advanced by the plaintiff that she had been collecting rent from the tenants inducted by the donor, but no rent receipts have been filed. On the contrary certain rent receipts issued by the donor after the execution of the deed of gift have been brought on record. There is no proof that the land was mutated in her favour by the revenue authorities. She was also not in possession of the title deeds. Thus, the evidence on record, on a studied scrutiny, clearly reveal that Rasheeda Khatoon was not in constructive possession. Therefore, one of the elements of the valid gift has not been satisfied. That being the position there is no necessity to advert to the aspect whether the instrument in question required registration or not because there can be certain circumstances a deed in writing may require registration. In the case at hand, we conclusively hold that as the plaintiff could not prove either actual or constructive possession, the gift was not complete and hence, the issue of registration does not arise.
23. If at all the defendant no.1 had gifited the suit property under a oral gift, then the plaintiff has the duty 26 O.S.No.8601/2012 to prove the 3 facts. Firstly whether the defendant No.1 had an intention to gift the suit schedule property.
Secondly whether she had accepted the same. Thirdly does the donor had delivered the suit schedule property actually or constructively in favor of donee or whether the donee is in possession of the said property. In that background let us examine the evidence of the plaintiff.
24. The plaintiff breathlessly, vociferously and categorically pleaded that after death of her father, her mother the defendant No.1 was in financial distress, she had to maintain a huge family consisting of 10 children. She had to perform marriage of both the sons and daughters, she had to feed the family and there was a loan liability, she had to refund the security deposit to the tenants in the suit property, as due to old age of building, there was a seepage, tenants started to vacating from the suit property. in that event there were hand loan and to clear of the same the property of her father 27 O.S.No.8601/2012 situated at J.P.Nagar has been sold. In that event the defendant No.1 is in obligation to refund the amount of more than Rs.2,00,000/-, which is a security deposit. In that event the plaintiff and her husband have came to her rescue, cleared of the security deposit, shared their shoulder with the defendant No.1 to reduce her stress and burden, for which the defendant No.1 was having love and affection on the plaintiff. Thus the defendant No.1 gave an offer to the plaintiff that she would ready to gift the suit schedule property to her by way of oral gift with a condition that she has to develop the said property by putting up of multi-storied building, wherein she has to accommodate the defendant No.1 by providing a portion of property for her residence till her death. For which the plaintiff allegedly accepted. Thus on 20/2/2004 the defendant No.1 allegedly with prior deliberations with all her children made a declaration in presence of them stating that she is gifting the suit schedule property to the plaintiff. And next day to 28 O.S.No.8601/2012 confirm that oral gift the defendant No.1 allegedly executed the Ex.P1 which is the confirmation of oral gift, the said document is being marked as Ex.P10 in this case. In the said document all the children have allegedly signed.
25. But, If the Ex.P10 document is perused, firstly there is no reference as to whether the defendant No.1 made the deliberation prior to making the oral gift of suit property in favor of the plaintiff and not even reference to show, that atleast making such oral gift in the presence of her all children. Even, in the Ex.P10 and 11 there is no conditions as to state that, does the oral gift is made by the defendant No.1 with conditions, such as the plaintiff shall develop said property by putting up construction of building, out of which letting a portion to the defendant no.1 for her residence.
26. Secondly, though the plaintiff had categorically contend6ed that for the said document it is all the 29 O.S.No.8601/2012 children of the defendant No.1 have signed. But in the said document there is no reference as to, does the defendant no.1 had executed the Ex.P10 document in the presence of all her children.
27. Thirdly and admittedly for the said document 2 daughters and the defendant No.2 were not the signatories. This three aspects which gives serious doubt on the case of the plaintiff. If at all the defendant no.1 had executed the said document in presence of all her children, there is nothing prevented to add the clause. And, why would three children were left out. But, in this case, its the defendant no. 2 is the contesting party. Out of the parties to the Ex.P10 almost 6 persons are examined, who have deposed that it was executed by the defendant no.1. But there is no explanation as to why would other three children were not signatory to the Ex.P10. What made them to remain outside the document or transactions. There is no answer from the 30 O.S.No.8601/2012 plaintiff's side.
28. The plaintiff further contended that the defendant No.1 to further safeguard the interest of the plaintiff, on 5/8/2005 executed the confirmation of oral gift of the suit schedule property before the notary public named M.G. Uttappa. But the defendants have contended that after knowing that the plaintiff is claiming that defendant No.1 had executed the Ex.10 and P11, as they are not executed by the defendant No.1 by contending that they are the created documents by forging her signature, lodged a private complaint before the jurisdictional Magistrate, same has been referred to the jurisdictional police for investigation, on which the police by investigating the case have filed their charge sheet in Crime No.2279/2011 for the offences punishable under Section 120B, 420, 464, 465, 466, 468 r/w. 34 of IPC, after cognizance it is numbered as C.C.No.9019/2019, which is as per Ex.D12 and even 31 O.S.No.8601/2012 trial has been commenced. Wherein the notary public M.G.Uttappa gave his statement stating that the executant of the Ex.P11 was not before him at the time of executing the said document. It was produced by the advocate known to him, thus he got attested the same.
29. Secondly, Ex.P11 got prepared on the document sheet, on which franking has been done showing that Rs. 100/- stamp duty has been the collected by the office of the Shidlaghatta sub-registrar, but wherein the investigating officer by writing a letter requested the information from the said office by seeking clarification as does that document is franked in their office, for which the sub-registrar sent a reply stating that, as the subject matter of property not falls within their jurisdiction, thus question they collecting any duty on the said document do not arise. Which would clearly demonstrates the facts that, Ex.P11 is not the genuine document executed by the defendant no.1. Even the 32 O.S.No.8601/2012 plaintiff made no efforts to prove the fact of execution of Ex.P11 by the defendant no.1. Thus, this court has no impediment to hold that, Ex.P11 is not the document is executed by the defendant no.1. As the serious doubtful circumstances existed around the execution of the Ex.P11 raised by the defendants have not been addressed by the plaintiff.
30. However the plaintiff to prove the Ex.P10 examined the some of the signatories to the said document who are the children of defendant No.1, who have categorically deposed that the defendant No.1 had expressed her intention by deliberating in their presence that she is gifting the suit schedule property to the plaintiff herein orally. Later in their presence Ex.P10 has been executed. They have identified their signatures and even identified the signature of the defendant No.1 herein. If that aspect is considered, atleast to the extent of Ex.P10, it is the plaintiff by producing the original 33 O.S.No.8601/2012 document itself by examining the signatory to the said document proved that it is the defendant No.1 had executed the said document. If at all the said document has not been executed by her, still she had the opportunity to refer the said document to the handwriting expert to know, does really signature therein which is identified by the witness and marked as Ex.P10(c) is belongs to her or not. But no such efforts being made.
31. Thus, atleast to the extent of Ex.P10 the contention of the defendants are not consistent. With regard to the Ex.P11 is concerned, of course, no doubt that if the Ex.D12 charge sheet materials are perused, the notary public and the office of the Sub-registrar themselves have stated that firstly the executant has not appeared before the notary for execution of the same, secondly the said document has not been franked in their office. In that event, it is the duty of the plaintiff to prove 34 O.S.No.8601/2012 the document showing that it has been executed by the defendant No.1 alone. Thus this Court had serious doubt on the execution of Ex.P11 by the defendant No.1. But no such doubt would arise in the mind of this court Court atleast to hold that Ex.P10 is bearing the signature of the defendant No.1 wherein she had confirmed that she had gifted the suit schedule property in favour of the plaintiff herein by oral gift. Thus this Court is of the opinion that the defendant No.1 had gifted the suit schedule property in favour of the plaintiff under oral gift dated 20/2/2004.
32. The next question would be does the Execution of oral gift is sufficient to show that gift has been completed? Is not necessary to prove that Gift has been completed by fulfilling the gold principles such as Intention to Gift the property, acceptance and delivery of possession which are the criterias enumerated under the Mohammedan Law. As discussed supra, this Court has 35 O.S.No.8601/2012 already by considering the guidelines of the Hon'ble Apex Court in the supra referred decisions had hold that, under the Mohammedan Law oral gift is in practice, same has been recognized in India. Infact under the Transfer of Property Act 1972 transfer of property worth of exceeding Rs.100/- shall be transferred compulsorily through the registered document. But, under Section 129 of the TP Act, exempted to the oral gift of the Mohammedan. In that event, if the gift is made by oral, then how do we recognize it, what is the characteristics of it. To that extent the Hon'ble Apex Court had categorically explained in the supra deciosons. In that event, 3 criterias are requires are to be met. Firstly the intentions to gift. To that extent the plaintiff has proved by producing the Ex.P10 and examining the PW.2 to PW.7 who are the own sister and brothers and none other than the children of defendant No.1. Though, the defendants have got an opportunity to cross examine these witnesses, but nothing has been elicited from their 36 O.S.No.8601/2012 mouth to doubt on the Ex.P10.
33. But the next question would be does the plaintiff had accepted the gift, whether the defendant No.1 delivered the possession of the suit property to complete the oral gift. Firstly the plaintiff had categorically pleaded and deposed that after gifting the suit property in her favour under a oral gift, she had accepted the same and even taken the delivery of possession.
34. To find out does really, the plaintiff had accepted the same and delivery has been completed. let us examine the evidence and circumstances placed by the plaintiff in her evidence. Plaintiff's contention is that, as on the date of gift the building in the suit schedule property was in dilapidated condition, there were tenants, as the building was in seepage condition, the tenants started to vacate, in that event defendant No.1 had a bounden duty to refund the security deposit of 37 O.S.No.8601/2012 Rs.2,06,000/-, thus she had refunded the same to the tenants on their vacation from the tenanted premises. But absolutely no material being placed before this Court.
35. Secondly, it is her contention is that, the defendant No.1 delivered the physical possession of the suit property along with original documents of the suit property. After taking the delivery of possession, she demolished the old building therein, had put up the building consisting of ground plus 3 floors by spending huge money. She contended that, under the Voucher at Ex.P7 she made the payment to her vendors. Also claims that, Ex.P8 some entry with regard to purchase of items to the suit schedule property and Ex.P9 is a diary under which the plaintiff allegedly made some payments to her vendors. If the said documents are perused carefully, they are to gives us a clarity to as to who made the said payment, those payments were made? Does really 38 O.S.No.8601/2012 against the construction of building in the suit property is concerned, they really do not gives a clarity.
36. But per contra, if the sequence produced by the defendants are considered, firstly despite the plaintiff claiming that she had got the suit property by way of gift, but the possession of the said property is continued with the defendant No.1. The khata stands in her name and she continued to pay the property taxes to the authority. Further, to put up the construction, old building being demolished, to put up the construction building plan and have been obtained in her name. Water and electricity connection have been taken in her name. Further the defendant produced the Ex.D1 and D3 which are the copies of the lease agreements. After construction of the building the portion of the shop in ground floor and first floor have been leased to the plaintiff's husband run his printing business.Further the defendants have produced the mortgage deed which is as per Ex.D7 under which 39 O.S.No.8601/2012 the defendant No.1 by depositing the original title deeds of the suit property with the Malleshwaram Co-operative Society, she had availed loan of Rs.8,45,000/- for the purpose of construction. Further the defendant No.1 produced the Ex.D4 which is an another mortgage deed dated 11/11/2010 under which the defendant No.1 availed Rs.24,00,000/- as mortgage money to clear of the debts, for which the plaintiff and all the children of defendant No.1 were parties to the said document, wherein they categorically declared that it is the defendant No.1 is the absolute owner of the suit schedule property, thus they have no objections to lend the mortgage loan to the defendant No.1. And the said fact has been admitted even by the P.W.1 to 7 and that apart admittedly it is the defendant No.1 and 2 are in possession of the suit property, they are personally occupied the 3rd floor of the building, rest of the tenements have been leased to the tenents, presently its the defendant no.2 is drawing the rent since from the 40 O.S.No.8601/2012 date of construction to till date. It means to say, the plaintiff fails to prove the fact that the defendant No.1 acted upon the Ex.P10 by delivering the possession of the suit schedule property. It means to say, the plaintiff fails to prove it is the defendant No.1 had delivered the possession of the suit schedule property and also original documents in her favor. In that event it is very clear that though the Ex.P10 is being proved before this Court, but same has not been acted upon by the parties. In that event one of the important criteria prescribed under the Mohammedan Law to complete the oral gift has not been complied. As one of the important criteria complied, thus this Court cannot accept the facts that, under the Ex.P10 gift deed the defendant No.1 got the gift of the suit property, thus she is to be declared as absolute owner of the suit property.
37. It is not in dispute that it is the defendant No.1 had availed construction loan under Ex.D7 and also 41 O.S.No.8601/2012 availed loan under Ex.D4 and all the loans have been cleared of. In fact, with regard to the who had constructed the building is concerned, to that extent there is a dispute. The plaintiff contended that it is she had put up the construction. But absolutely there is no material to show she had put up the construction. If at all she is a owner, she had taken the delivery of possession under a oral gift, she would have got the khata in her name, she would have applied the building plan in her name, she would have applied loan or she would not have permitted the defendant No.1 to apply loan from Malleshwaram Co-operative bank under Ex.D7. In fact during the cross-examination of DW.2 it is the plaintiff made a suggestion that "it is the plaintiff's husband had lent huge money for the purpose of construction of building in the suit property. It means to say, it is their own admission that the construction in the suit property being made by defendants, its not by the plaintiff and her husband. Its 42 O.S.No.8601/2012 not in dispute that, its the plaintiff's husband had lent the loan to the defendants to put up the construction, as the plaintiffs have categorically admitted in their plaint itself. It may be true that the plaintiff's husband might have lent loan to the defendants to put up the construction. That means to say, mere lending loan cannot gives the plaintiff claim absolute ownership over the suit property.
38. learned counsel for the plaintiff during his arguments vehemently contended that Ex.D1 and D3 cannot be accepted in evidence as they have no evidentiory value. In this regard he has placed reliance on the decision of the Hon'ble High Court of Karnataka in case of Khivraj Motors & others Vs. Sathya D. Sampath decided in W.P.No.10895/2010 dated 8/4/2010. The relevant para No.8 on which the plaintiff place reliance is extracted herein below :-
Having heard the learned counsel for the parties and on careful perusal of the materials on record and the judgments relied 43 O.S.No.8601/2012 on by the learned counsel for the parties, I find that the learned trial judge was right and justified in holding that the xerox copy of the document which is compulsorily registrable cannot be admitted in evidence. No doubt, P.W.1 has admitted in her evidence when confronted with the xerox copy that the lease deed was executed but the duration had since expired. The admission by a party cannot make an otherwise inadmissible document to be admitted in evidence, as otherwise it will amount to violating the prohibition enacted in this regard under the Registration Act, 1908. As per Section 17(1)(d) of the Registration Act, 1908, the transaction contained in the xerox copy sought to be marked in evidence is compulsorily registrable. Section 49 of the Registration Act, 1908, spells out the effect of non registration of documents requires to be registered. It states that, No document required by Section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall -
(a) affect any immovable property comprised therein ; or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered.
39. The dispute of the plaintiff on evidentiory value of the above said document cannot be considered at this stage, for the simple reason that prior to that he has challenged the order of this Court on getting the Ex.D1 and D3 exhibited in this case on the ground that they are 44 O.S.No.8601/2012 insufficiently stamped documents and they have to be impounded. In this regard this Court has already gave its findings by passing an order on I.A.No.17 to 19 dated 30/7/2021. The same has not been challenged by the plaintiff herein. Moreover, irrespective of placing reliance on the Ex.D1 and D3 to consider that the husband of the plaintiff herein was also a tenant in the suit schedule property, but her own witnesses the P.W.2 to 7 have categorically admitted that it is the husband of the plaintiff was also a tenant in the suit schedule property, but they gave an explanation that said lease was to show the same to the Banker that the defendant no.1 is having rental income. This is without a pleading by the plaintiff. Infact said contention cannot be accepted as true for the reasons that, the Ex.P1 is dated 4/4/2007, prior to said document the plaintiff had availed the loan of Rs. 8,50,000/- mortgage loan, and pursuant to which on 11/11/2010 the defendant No.1 availed another top up mortgage loan to the tune of 45 O.S.No.8601/2012 Rs.24,00,000/-, for which all the children of defendant No.1 have given no objection and also they gave declaration to the Banker that, as the defendant no.1 is the absolute owner of the suit property, thus they have no objection to sanction loan to her. This material would clearly suggest that it is the defendant No.1 was continued as owner in possession of the suit schedule property as an absolute owner, until gift away the same to the defendant no.2. Thus whether to rely or not to rely on Ex.D1 and D3, that does not make much difference on the case of the plaintiff herein.
40. When the defendant No.1 is an absolute owner of the suit schedule property, she had the right to gift the same in favour of defendant No.2 herein. In fact, said gift deed is proved which is produced before this Court as per Ex.P3. As though the said document being produced by the plaintiff but execution of said document is an undisputed one, based on which it is the defendant No.2 46 O.S.No.8601/2012 has got the khata, paying taxes and having the possession. He leased the portions of the building to the tenants and receiving the rents. Thus the plaintiff made out no grounds to declare the said gift deed as nullity, void and not binding on the plaintiff. In fact, another important fact which gives raise to doubt the conduct of the plaintiff is that, the defendant no.1 after availing the loan from the Malleshwaram Co-Operative Bank Limited, thus the banker had initiated the proceedings under Section 70 of the Karnataka Co-operative Societies Act, wherein the plaintiff was also a party to the said proceedings, as she was also a guarantor to the said loan. There the plaintiff had not whispered anything on the existence of oral gift, not taken the contention is that as the suit property is gifted her under oral gift, thus she is the owner and she had put up the construction, thus the defendant no.1 had no right to avail a mortgage loan by mortgaging the same in favor of the said banker. In fact, the laerned Joint Registrar of Co-operative Society 47 O.S.No.8601/2012 had passed an award as per Ex.D17 by creating charge over the suit property, but before the banker initiating the execution proceedings, it is the defendant No.1 and 2 have cleared of the said loan and got the certificate as per Ex.D19 and NOC as per Ex.D18 and also the said bank issued the No Due Certificate as per Ex.D20. Thus, if the supra referred evidence are considered, no doubt that the defendant No.1 though gifted the suit property under Ex.P10, but not delivered the possession, she continued to be in possession and occupation of the property, and continued to exercise right of ownership, though the plaintiff were in knowledge of the same, she made no efforts to claim her right of ownership by virtue of Ex.P10. At no point of time the plaintiff did not exercised her right of ownership over the suit property. Thus, as the Ex.P10 is without delivery of possession, thus the plaintiff had not derived any right, title and interest under the said document. Thus the Ex.P10 is not at all acted upon. Thus I answer the issue No.1 and 2 in the 48 O.S.No.8601/2012 negative and issue No.5 partly in the affirmative.
41. Issue No.3 & 4 : This Court while answering issue No.1, 2 and 5 had categorically hold that under an oral gift dated 20/02/2004 or under the written confirmation document dated 21/02/2004 and 05/08/2005 the actual delivery of possession of suit schedule property has been done. Unless the delivery of possession is proved, the oral gift cannot be considered as valid gift. Though this Court hold that the defendant No.1 had an intention to gift the suit property orally vide oral gift dated 20/2/2004, as the same was not acted upon by delivering the physical possession in favor of the donee, thus the said gift cannot be accepted as valid. Under the oral gift dated 20/2/2004 if the plaintiff would wants to seek the possession, then the plaintiff shall prove prior possession over the suit schedule property. In this case the plaintiff failed to prove at any point of time she ever been in possession of the suit schedule 49 O.S.No.8601/2012 property. As she fails to prove the said fact, thus delivery of possession as sought in this suit cannot be granted. In fact, despite the defendant No.1 had shown intention to gift the suit property under a oral gift, but by not delivering the possession, she continued to enjoy the suit property as its absolute owner until gifting the same in favor of defendant No.2 vide registered gift deed dated 21/12/2010. In fact, the defendant no.1 demolished old building, by obtaining the approved building plan had put up the construction, leased the portion of suit schedule premises in favor of husband of the plaintiff herein as per Ex.D1 and D3, she leased the remaining premises in favor of the other tenants, she was drawing the rents until she gifting the same in favor of defendant No.2, thereafter it is the defendant No.2 who acquired the suit property under a registered gift deed dated 21/12/2010, he is in possession as an absolute owner, thus the plaintiff has no whatsoever right, title, interest in the suit schedule property, thus she is not entitled for 50 O.S.No.8601/2012 the possession, as she fails to prove her title and also prior possession, thus the question of defendants causing an interference do not arise and in that event, granting of permanent injunction to restrain the defendants from interfering with her possession and enjoyment do not arise. Thus, I proceed to answer issue No.3 and 4 in the negative.
42. Issue No.6 : As the plaintiff failed to prove her case, which deserves to be dismissed. Accordingly, I proceed to pass the following :-
ORDER The suit of the plaintiff is dismissed with cost.
Office is to draw the decree accordingly. (Dictated to the Stenographer, typed by her directly on computer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 30th day of July, 2024 (GANGADHARA.K.N.) XII ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY 51 O.S.No.8601/2012 ANNEXURE List of witnesses examined on behalf of:
I. Plaintiff' side :
P.W.1: Saleema Bi
P.W.2: Salma
P.W.3: Heera
P.W.4: Fathima Tabassum
P.W.5: Noorulla Shariff
P.W.6: M.D. Samiulla
P.W.7: Azmathulla
P.W.8: Ganeshan N
II. Defendant's side :
D.W.1: Rehamathulla
D.W.2: Zaibunnissa
List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P.1 Khata extract
Ex.P.2 Khata certificate
Ex.P.3 Gift deed dated 21/12/210
Ex.P.4 Complaint dated 18/6/2011
Ex.P.5 & 6 Affidavits
Ex.P.7 Vouchers
52 O.S.No.8601/2012
Ex.P.8 & 9 Account books
Ex.P.10 Deed of confirmation dated 21/2/2004
Ex.P10(a) to Signatures
(n)
Ex.P.11 Confirmation of oral gift dated 5/8/2005
Ex.P.11(a) Signature
Ex.P.12 Deposition in CC.No.9019/2013
Ex.P.13 Deposition in CC.No.9019/2013
(b) Defendants side :
Ex.D.1 Rent agreement
Ex.D.2 Form VAT 7
Ex.D.3 Lease agreement
Ex.D.4 Deposit of title deeds
Ex.D.5 Settlement deed dated 19/6/1964
Ex.D.6 Relinquishment deed dated 27/11/1965
Ex.D.7 Deposit of title deeds
Ex.D.8 Trade license
Ex.D.9 Tax paid receipt
Ex.D.10 Official memorandum dated 23/5/2006
Ex.D.11 Sanction order dated 6/11/2007
53 O.S.No.8601/2012
Ex.D.12 Order sheet in C.C.No.9019/2013 Ex.D.13 PCR No.22791/2011 Ex.D.14 FIR in Cr.No.172/2011 Ex.D.15 Charge sheet in CC NO.9019/2013 Ex.D.16 Letter dated 4/10/2019 Ex.D.17 Order passed by the Joint registrar of Co-
operative societies dated 27/9/2012 Ex.D.18 Certificate Ex.D.19 Certificate Ex.D.20 NOC Digitally signed by GANGADHARA GANGADHARA K N KN Date: 2024.08.17 12:55:25 +0530 XII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.