Bangalore District Court
Smt. Tejaswini @ Tejevathi vs N. Shekar on 24 February, 2020
IN THE COURT OF LXV ADDL CITY CIVIL AND SESSIONS
JUDGE; BANGALORE CITY [CCH.NO 66]
PRESENT
SHRI. SUBHASH SANKAD
B.A.,LL.M.
LXV Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.2113/2016
Dated this the 24th day of February, 2020
PLAINTIFF/S:- 1. SMT. TEJASWINI @ TEJEVATHI,
w/o H.B. Gururaj,
Aged about 42 years
2. SRI. S.K. PAVAN KUMAR,
s/o Shivakumar B.S.
Aged about 20 years.
3. KUM. S.K. PRAKRUTHI,
d/o Shivakumar B.S.
Aged about 19 years,
All are residing at No.118/9,
Bhaskar Building, 9th Cross,
Opp. Sai Printers,
Rajagopalanagar,
Bus Stop Main Road,
Peenya II Stage,
Bengaluru - 560 058.
(By Sri. BVS., Advocate)
-Vs-
DEFENDANT/S:- N. SHEKAR,
s/o K. Nanjundappa,
2 OS.No.2113/2016
Aged about 40 years,
R/at No.66/1, Khatha No.83,
House list No.87/1,
Presently BBMP Property No.76/76,
I Main, I Cross,
Jakkasandra Village,
Koramangala I Block,
Bengaluru - 560 034.
(By Sri. NHK, Advocate)
* * *
Date of Institution 14.03.2016
Nature of the suit Partition
Date of recording 07.03.2017
of evidence
Date of Judgment 24.02.2020
Total Duration Days Months Years
10 11 03
* * *
JUDGMENT
This is a suit filed by the plaintiffs against the defendant for the relief of partition and separate possession of their 1/3rd share in the suit property and for the further relief of declaration that the registered gift deed dated 10.03.2014 executed by Smt.Gowramma in favour of defendant, and the registered Will 3 OS.No.2113/2016 dated 07.10.2009 are not binding on them to the extent of their respective share in the schedule property and they have further sought for mesne profit.
2. The brief facts of the plaintiffs case is that.- The plaintiff No.1 - Smt. Tejeswini, Smt.Kumudavathi -the mother of plaintiffs No.2 & 3, and the defendant-Mr. N. Shekar are children of Smt.Gowramma. Smt.Gowramma is the daughter of one Shri. Chowdappa. Originally the suit property was owned by Chowdappa, father of Smt.Gowramma, said Chowdappa had purchased the suit property by way of registered sale deed dated 28.09.1959 and the suit property is self-acquired property of Chowdappa. Chowdappa died intestate leaving behind his daughter Gowramma and son Nagaraju. After the demise of Sri. Chowdappa, Sri.Nagaraju, younger son of Chowdappa transferred the suit property in favour of Smt.Gowramma by way of registered gift deed dated 11.02.1974. On the date of registration of the gift deed, the possession of the suit property was handed over to Smt.Gowramma.
3. This being the state of affairs, it is contended by the plaintiffs that Mr.Nagaraju i.e., brother of Smt. Gowramma has 4 OS.No.2113/2016 gifted the property jointly to Smt. Gowramma, and plaintiff No.1- Tejaswini and mother of plaintiffs No.2 and 3 -Mrs.Kumudavathi, and Gowramma accepted the gift for herself and also on behalf of her minor daughters. It is further stated by the plaintiffs that at the time of registration of the gift deed the defendant had not born, as on the date of the execution of the gift deed it is plaintiff No.1 -Mrs. Tejeswini and mother of plaintiffs No.2 and 3 -Mrs. Kumudavathi had born. The gift of the suit property was accepted by Smt. Gowramma for herself and on behalf of her two minor children, the plaintiff No.1-Mrs.Tejaswini and mother of plaintiffs No.2 and 3 Mrs. Kumudavathi. After accepting the gift Smt.Gowaramma was looking after the suit property which is a house property.
4. It is further stated by the plaintiffs that Smt.Gowramma died on 11.08.2014 and her husband died long back and the mother of plaintiffs No.2 and 3 -Mrs. Kumudavathi died on 21.06.2009. This being the case, Smt.Gowramma had executed registered Will dated 20.02.2006 bequeathing the suit property in favour of plaintiff No.1 and mother of plaintiffs No.2 and 3 and the defendant. Since the mother of plaintiffs No.2 and 5 OS.No.2113/2016 3 -Mrs. Kumudavathi died on 21.06.2009, Smt. Gowaramma had cancelled the said registered Will dated 20.02.2006 and executed another Will dated 07.10.2009 bequeathing the suit property in favour of plaintiff No.1, plaintiffs No.2 & 3 and the defendant. Since plaintiffs No.2 and 3 were minors the plaintiff No.1 was appointed as minor guardian for plaintiffs No.2 and 3 by Gowaramma.
5. Smt. Gowaramma died on 11.08.2014 before her death Will dated 07.10.2009 was cancelled, and registered gift deed dated 10.03.2014 was executed by her gifting the entire suit property to her son who is defendant. It is further stated by the plaintiff that after the death of their mother Smt. Gowramma, on 04.01.2016 the defendant herein had brought some unknown persons to the suit schedule property with an intention to sell that property. When the plaintiffs asked about the situation, the defendant has stated that he is going to sell the property to the prospective purchasers. When the plaintiffs have stated that they are not interested to sell the schedule property and made an attempt to stop the alienation, the defendant became rude and stated to the plaintiffs that, it is not necessary for him to listen to 6 OS.No.2113/2016 anybody and his mother has executed the registered gift deed dated 10.03.2014 in his favour, and by virtue of the said gift deed he has become absolute owner of the said property. Thereafter on enquiry and verification the plaintiffs herein have applied for certified copy of the document under RTI Act, and they got to know about the document on 9.01.2016 and they came to know that her mother has executed registered gift deed dated 10.03.2014. It is contended by the plaintiffs that the suit property is not only gifted to his mother, it was gifted to plaintiff No.1 and mother of plaintiffs No.2 and 3 and Smt. Gowramma jointly, and Smt. Gowramma had accepted the gift deed on behalf of herself and for minor children.
6. It is further stated by the plaintiffs that Smt.Gowramma is not absolute owner of the suit property and she had no right to execute a Will or gift the property to defendant. It is further contended by the plaintiffs that if Smt.Gowramma wanted to gift the property, she is entitled to gift the property to the extent of her share in the suit property and they have claimed that the gift deed or Will executed by Smt. Gowramma is not binding on their share. Though the plaintiffs 7 OS.No.2113/2016 have brought all these aspects into notice of the defendant and requested him for partition, the defendant denied to affect the partition. Therefore, having left with no option the plaintiffs have filed the present suit claiming 1/3rd share to the plaintiff No.1, and 1/3rd share to the plaintiffs No.2 and 3 in the suit schedule property, and further sought for declaration that the registered gift deed dated 10.03.2014 executed by Smt. Gowramma in favour of defendant herein pertaining to the schedule property is not binding on the plaintiff to the extent of their respective share in the suit property, and they have further sought for declaration that the registered Will dated 07.10.2009 executed by Smt.Gowramma is not binding on the plaintiffs herein to the extent of their respective share in the schedule property.
7. After presentation of the suit, in response to the suit summons, the defendant appeared and filed the written statement. The defendant has contended in his written statement that, the suit filed by the plaintiffs claiming the relief is not maintainable, and the plaintiffs have no vested right to claim partition in respect of the suit schedule property, and the plaintiffs have not paid the court fee in respect of the reliefs claimed by 8 OS.No.2113/2016 them, and the plaintiffs have assailed the gift deed dated 10.03.2014 executed by Smt. Gowramma in favour of the defendant, and the plaintiff ought to have paid the court fee on the market value of the suit schedule property, and in order to avoid the payment of court fee, the plaintiffs have sought for partition in respect of the suit schedule property and cancellation of the gift deed as ancillary relief.
8. It is the further contention of the defendant that the suit schedule property was solely owned by Smt. Gowramma and the plaintiffs had never owned or exercised ownership rights in respect of the suit schedule property. The defendant has denied that Smt. Gowramma and her children have acquired the suit schedule property by virtue of registered gift deed dated 11.02.1974 from the brother of Smt.Gowramma i.e. one Nagaraj and the said property is the joint property of Gowramma and the plaintiffs, except his mother Gowramma no other person had any right, title or interest over the suit schedule property, and the gift was accepted by Gowramma for herself only, and not on behalf of her minor children, the acceptance of the gift was by Smt. Gowramma, and the acceptance on behalf of minor children is 9 OS.No.2113/2016 only superfluous and the same will not entitle the plaintiffs to claim right over the property, the donor gifting the suit schedule property had no intention to convey the property in favour of children of Smt.Gowramma, and hence merely accepting gift by mentioning on behalf of minor children would not confer rights on the children of Smt.Gowramma. It is further contention of the defendant that the mother of plaintiffs No.2 and 3 and the plaintiff No.1 had never exercised any rights of ownership over the property, they had even acquiesced to the ownership of Smt. Gowaramma, the mother of plaintiffs No.2 and 3 -Kumudavathi and plaintiff No.1 had also knowledge of the Will executed by Smt. Gowramma and had never questioned the same, Smt.Gowramma was the absolute owner of the suit property, in view of the registered gift deed dated 10.03.2014 and the said gift deed 10.03.2014, the plaintiffs have no right, title or interest over the suit property. The defendant has further contended that in fact till the date of death of Smt.Gowramma she had exercised rights as owner of the property, that by virtue of registered gift deed dated 10.03.2014 he has become the absolute owner of the suit schedule property.
10 OS.No.2113/2016
9. It is further stated by the defendant that, his mother Gowramma had executed a registered Will dated 07.10.2009 which was in the knowledge of the plaintiffs and they were aware and had accepted that Smt.Gowramma was the absolute owner of the suit property, subsequently his mother Smt.Gowramma had cancelled the Will dated 07.10.2009 by a deed of cancellation of Will dated 10.03.2014 wherein earlier Will dated 07.10.2009 was cancelled, and on the same day she had executed a registered gift deed in favour of defendant in respect of the suit property, thus the defendant has become the absolute owner of the suit property. It is further stated by the defendant that, the plaintiffs were aware of the execution of the Will dated 07.10.2009 and also the cancellation of the same on 10.03.2014 and also aware of the execution of the gift deed in favour of the defendant, hence he claimed that the plaintiffs are not entitled for any share in the suit schedule property, Smt. Gowramma was the absolute owner of the suit property and pursuance of the gift deed dated 10.03.2014, he has become the absolute owner of the suit property. With this statement he has sought for dismissal of the suit.
11 OS.No.2113/2016
10. On the basis of the pleadings the following issues have been framed by this court by order dated 24.10.2016.-
1) Whether the plaintiffs prove that Late Smt.Gowramma and her children namely 1st plaintiff and Kumudavathi deceased mother of plaintiff No.2 and 3, have acquired suit schedule property by virtue of Regd Gift Deed Dt.11.2.1974 from late Nagaraj;the brother of late Smt.Gowramma?
2) Whether the plaintiffs prove that themselves and defendant are the joint owners of suit schedule property?
3) Whether the plaintiffs prove that suit schedule property is liable to be partitioned by metes and bounds and consequently 1st plaintiff is entitled to get 1/3rd share and plaintiff No.2 and 3 are together entitled to get 1/3rd share in the suit schedule property?
4) Whether the plaintiffs prove that regd Gift deed dt.10.3.2014 pertains to suit schedule property, executed by Late Gowramma in favour of defendant, is not binding to the extent of their respective share in the schedule property?
5) Whether plaintiffs prove that regd Will dt.17.10.2009 pertains to suit schedule property, executed by Late Gowramma in favour of defendant, is not binding to the extent of their respective share in the schedule property?
6) Whether the plaintiffs prove that late Smt.Gowramma did not have absolute right, title interest over the suit schedule property, in order to execute the Gift Deed dt.10.3.2014 12 OS.No.2113/2016 and registered Will dt.7.10.2009 in favour of defendant?
7) Whether the defendant proves that court fee paid on the reliefs, is insufficient?
8) Whether the plaintiffs are entitled to get Accounts from the defendant, in respect of suit schedule property?
9) What decree or order?
11. The plaintiff No.1 has been examined before the court as PW1 and got marked the documents at Ex.P1 to 17. Ex.P1 is the certified copy of stamp paper dated 28.09.1959, Ex.P2 is the certified copy of gift deed dated 11.02.1974, Ex.P3 is the certified copy of gift deed dated 10.03.2014, Ex.P4 is the khata extract, Ex.P5 is the notarized copy of PAN card, Ex.P6 is the birth certificate of PW1, Ex.P7 is the death certificate of Kumudavathi, Ex.P8 is the endorsement issued by BBMP under RTI, Exs.P9 & 10 are the tax paid receipts, Ex.P11 is the reply letter issued by BBMP under RTI, Ex.P12 is the certificate issued by BBMP under RTI, Ex.P13 is the tax paid receipt issued by BBMP under RTI, Ex.P14 is the B' khata issued by BBMP under RTI, Ex.P15 is the certified copy of house property, Ex.P16 is the certified copy of Will dated 07.10.2009 and Ex.P17 is the bank statement of PW1. 13 OS.No.2113/2016
12. The defendant is examined as DW1 and no documents are marked.
13. Heard the arguments of learned Counsels appearing for the parties and perused the materials on record.
14. My answer to the above issues are as follows:-
Issue No.1:- In the Negative
Issue No.2:- In the Affirmative
Issue No.3:- In the Affirmative
Issue No.4:- In the Affirmative
Issue No.5:- In the Negative
Issue No.6:- In the Negative
Issue No.7:- In the Negative
Issue No.8:- In the Affirmative
Issue No.9:- As per final order
for the following
REASONS
15. Issue No.1 and Issue No.6:- Since these two issues are inter-connected, in order to avoid repetition, I have taken up these two issues for common discussion.
16. It is the case of the plaintiffs that, Mr.Nagaraju i.e., brother of Smt.Gowramma has transferred the suit property jointly 14 OS.No.2113/2016 in the name of their mother Smt.Gowramma, Smt.Tejeswini and Smt.Kumudavathi by way of registered gift deed dated 11.02.1974. Since plaintiff No.1 and Smt.Kumudavathi i.e., mother of plaintiffs No.2 and 3 were minors, their mother Smt.Gowramma had accepted the gift for herself and on behalf of her minor daughters. After accepting the said gift, on the same day the possession was handed over to Smt.Gowramma, and Smt.Gowramma i.e., mother of plaintiff No.2 and defendant was looking after the suit property. To substantiate their case the plaintiff No.1 was examined as PW1 and got marked the documents at Ex.P1- the gift deed dated 11.02.1974. The plaintiffs have specifically relied upon the portion of the gift deed which was marked as Ex.P2(a) through defendant. The portion of the gift deed on which the plaintiffs have relied upon reads thus, '£À£ÀUÁVAiÀÄÆ ªÀÄvÀÄÛ ªÀÄPÀ̼À ªÉÄÊ£ÀgÀÄ UÁrðAiÀÄ£ïUÁV ¸ÀºÀ F ªÉÄîÌAqÀ zÁ£ÀªÀ£ÀÄß £Á£ÀÄ ¹éÃPÀj¹gÀÄvÉÛãÉ'.
17. Before adverting the actual issues, it would be very much necessary to go to the root of the issue i.e., whether Mr. Nagaraju had right to transfer the suit property by way of gift, in 15 OS.No.2113/2016 other words whether the gift deed dated 11.02.1974 executed by Mr. Nagaraju the brother of Smt.Gowramma is a valid gift. Though, both plaintiffs and defendant have not disputed this fact, in order to answer the aforementioned issue i.e., whether Smt.Gowramma had absolute right over the suit property, in my view it is very much necessary to examine the validity of the gift deed dated 11.02.1974, executed by Shri. Nagaraju in favour of Smt.Gowramma.
18. It is admitted fact that, the suit property was purchased by Mr. Chowdappa through registered sale deed dated 28.09.1959, and the same is his self acquired property, and Chowdappa died intestate, after his death his son Shri. Nagaraju transferred the suit property in favour of Smt.Gowramma mother of plaintiff No.1 and the defendant by way of registered gift deed dated 11.02.1974. The suit property was gifted by Shri. Nagaraj as per the last will and wish of his father to Smt.Gowramma. It is specifically mentioned in the gift deed dated 11.02.1974 that 'as per the will and wish of his father and out of the love and affection he is gifting the property. The relevant portion of the gift deed reads thus; ' £Á£ÀÄ F ¢£À zÀgÀzÀÄ ¤«ÄvÀåªÁV CAzÀgÉ ªÉÄîÌAqÀ 16 OS.No.2113/2016 UËgÀªÀÄä£ÁzÀ ¤Ã£ÀÄ £À£ÀUÉ SÁ¸Á CPÀÌ£ÀªÀgÁzÀÄzÀjAzÀ®Æ ªÀÄvÀÄÛ £ÀªÀÄä vÀAzÉ ªÉÄîÌAqÀ ZËqÀ¥Àà£ÀªgÀ ÀÄ F ªÀÄ£ÉAiÀÄ£ÀÄß ¤ªÀÄUÉ Cj²£À PÀÄAPÀĪÀÄPÁÌV zÁ£À¥ÀvÀæ §gɹPÉÆqÀ¨ÃÉ PÉAvÀ ºÉýzÀÝjAzÀ CªÀgÀ EµÀÖ ¥ÀæPÁgÀªÁVAiÀÄÆ ªÀÄvÀÄÛ ¤ªÀÄä ªÉÄð£À ¦æÃw «±Áé¸ÀPÁÌVAiÀÄÆ ¸ÀºÀ F ¢£À F PɼÀUÉ PÀAqÀ ZÀPÀÄ̧A¢UÉ M¼À¥l À Ö ¸ÀĪÀiÁgÀÄ (1,000/-) MAzÀÄ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼À ¨É¯¨ É Á¼ÀvÀPÀÌ ªÀÄ£ÉAiÀÄ£ÀÄß ¤ªÀÄUÉ Cj²£À PÀÄAPÀĪÀÄPÁÌV zÁ£ÀªÁV PÉÆlÄÖ, zÁ£À¥ÀvÀæ §gɹ jf¸ÀÖgÀÄ ªÀiÁr¹PÉÆnÖgÀÄvÉÃÛ£É'.
19. The careful appreciation of the document at Ex.P1 the registered sale deed dated 26.09.1959, by which Shri.Chowadappa has purchased the suit property from Shri.Muniswamy, and the registered gift deed dated 11.02.1974, through which Shri. Nagaraj, the son of Chowdappa transferred the suit property, in favour of Smt.Gowramma, it is crystal clear that the suit property is the self acquired property of Shri.Chowdappa, Shri. Chowdappa died intestate, and as per his last will, Shri. Nagaraj gifted the suit property to Smt.Gowramma. At this juncture, I would like to refer the position of law in respect of right of Hindu female whose father died intestate leaving 17 OS.No.2113/2016 behind his self acquired property. In the case in hand as I have mentioned herein above, the father had died intestate leaving behind his son Shri. Nagaraj and Smt.Gowramma. As per Ex.P2 he was willing to give the suit property to his daughter Gowramma. When the suit property is the self acquired property of Shri. Chowdappa and he died intestate leaving behind his son and daughter, both son and daughter are entitled for an equal share in the intestate property. In the case in hand, after the demise of their father, Nagaraj and Gowramma were entitled for equal share in the suit property, this being the case Nagaraj need not have gifted the property to Smt.Gowramma. Even though he had not gifted the property to Gowramma, she would otherwise be entitled for property to the extent of half share of her father property. And it is the principle of law that the gift to be valid, the donor must be owner of that property. In the case in hand soon after the death of her father Gowramma is entitled for equal share in her father's self acquired property along with Nagaraj. Therefore, Nagaraj had no right to gift the entire suit property to Smt.Gowramma. If at all the gift had to be valid, it is valid to the extent of his share. However, in the case in hand as it is mentioned in Ex.P1, Nagaraj had transferred the property in 18 OS.No.2113/2016 favour of Smt.Gowramma as per the last will of his father, which show that his father Shri. Chowdappa was willing to give the property to his daughter Gowramma. Gowramma has acquired the absolute right over the suit property not because the property was gifted to her by his brother Nagaraj, because as she was surviving daughter and as per the last wish of her father. With this reasoning I hold that the gift deed dated 11.02.1974 is not a valid gift, since the donor Shri. Nagaraj was not an absolute owner and Smt.Gowramma had acquired the right over the said property soon after her father died and the same is given to her as per the last wish of her father.
20. Now coming to the actual issue involved i.e., whether Smt.Gowramma and plaintiff No.1 and Smt. Kumudavathi have acquired the suit property by virtue of gift deed dated 11.02.1974. The ground on which the plaintiff's have claimed share is that their mother has received the gift for herself and on behalf of plaintiff No.1 and Smt. Kumudavathi. As it is held herein above the gift deed dated 11.02.1974 cannot be held valid, and in the absence of the said gift also she would have acquired the said property. Hence, I hold that it is Smt.Gowramma, who is the 19 OS.No.2113/2016 absolute owner of the property, and she acquired the absolute right over the property not by virtue of gift deed dated 11.02.1974, but as a surviving daughter to her father, who died intestate leaving behind his self acquired property. Since I have hold that Gowramma had got absolute right over the suit property, she was having every right to dispose of the suit property by any mode. Accordingly, I answer Issue No.1 and Issue No.6 in the 'Negative'.
21. Issue No.5:- The plaintiffs have stated that the registered Will dated 17.10.2009 is not binding on their share. That earlier in the year 2006 the deceased Gowramma had executed Will dated 20.02.2006, by which she had bequeathed her property to her three children. Since her daughter Smt. Kumudavathi died on 21.06.2009, she cancelled the Will and executed the Will dated 07.10.2009, which came to be cancelled on 10.03.2014. So far as the binding effect of the Will dated 07.10.2009 is concerned, since Smt. Gowramma became absolute owner of the suit property and she had got every right to dispose of the property by any means, and the same came to be cancelled during the life time of Smt. Gowramma, the binding 20 OS.No.2113/2016 nature of the Will dated 07.10.2009 will not gain much importance. Since it is already held that Smt. Gowramma has became absolute owner of the property the binding of Will dated 07.10.2009 will not arise. Hence, Issue No.5 is answered in the 'Negative'.
22. Issue No.2, Issue No.3, Issue No.4 and Issue No.8:- It is the case of the plaintiffs that the suit property was gifted to Smt.Gowaramma along with plaintiff No.1 and Smt. Kumudavathi jointly. And their mother had no right to transfer their share. I have already stated that Smt.Gowaramma had become full owner of the suit property after her father's death, and she remained in absolute possession over the suit property. It is admitted fact that Smt.Gowaramma had executed a Will in the year 2006, bequeathing the property to her three children. Since her daughter Kumudavathi died on 21.06.2009, Gowaramma cancelled her earlier Will and executed fresh Will dated 07.10.2009. In this Will Smt.Gowaramma bequeathed her property to her daughter Smt.Tejaswini, defendant and plaintiffs No.2 and 3 who are children of her daughter Kumudavathi. At this juncture, it is relevant to refer the evidence of PW1 wherein 21 OS.No.2113/2016 she has stated that her mother had told her about the Will, and her mother had given two houses to her and two houses to her sister Kumudavathi. However, it is her contention that her mother had no right to execute the Will. It is further relevant to mention here that during the life time of Smt.Gowaramma and even after her death defendant was depositing Rs.10,000/- to the bank account of plaintiff No.1-Smt.Tejaswini he was giving money to the plaintiffs, thereafter after filing of the present suit he has stopped giving money to the plaintiffs.
23. The careful analysis of the evidence of DW1 regarding payment of money and Will dated 20.02.2006, and 10.07.2009 it is clear that deceased Gowramma had intended to distribute the suit property among plaintiff No.1, defendant and plaintiffs No.2 and 3. Her intention in this regard has become crystallized. Therefore, in this view of the matter, plaintiffs were getting the profit from the suit property during the life time of Smt.Gowaramma. Keeping this in view I will now proceed to discuss about the validity of the gift dated 10.03.2014.
24. The gift is the transfer of the property without consideration by the donor to the donee. The gift to be a valid gift 22 OS.No.2113/2016 donor and the donee must be competent to contract and the transferor to be effective must be a valid transfer. The gift must be voluntarily executed i.e., it must be executed by free consent as defined under Section 14 of the Indian Contract Act. The consent is said to be free when the same is free from fraud, coercion and undue influence. In the case in hand Smt.Gowaramma had intended to distribute her property among her children, and her intention to distribute the property among her children has been crystallized by the two Wills i.e., Will dated 20.02.2006 and 10.07.2009. However, immediately before her death Smt.Gowaramma cancelled the 2nd Will dated 10.07.2009 and executed the gift deed dated 10.03.2014. It is relevant to note here that the Will dated 10.07.2009 was cancelled on the same day i.e., on 10.03.2014 on which the gift deed was executed. This creates the suspicion in cancelling and execution of the documents. Because, the defendant who was looking after his mother was in a dominating position, there is every chance of existence of undue influence by the defendant. Because, as it is admitted by the plaintiffs and the defendant the Will dated 07.10.2009 was in force till 10.03.2014, and there was no efforts by Gowramma to cancel the same. Since it is the 23 OS.No.2113/2016 defendant who was looking after his mother there is every chance of the undue influence by the defendant on Smt.Gowaramma. There arise a serious doubt in the conduct of the defendant.
25. Further, the gift deed dated 10.03.2014 at Ex.P3 is attested by two witnesses by name Shri. Madhusudhan -friend of defendant No.1 and Smt. Veena wife of defendant herein. The defendant has admitted in his cross-examination that he had not informed to the plaintiffs about the execution of the gift by his mother in his favour . Further more, in the case in hand though the plaintiffs have prayed for declaration that the gift deed dated 10.03.2014 is not binding on their share, looking into the circumstances of the case, the prayer is virtually for the cancellation of the gift deed at Ex.P3. When this is the situation, the defendant ought to have proved the execution of gift deed by examining the attesting witnesses. The defendant has not made any effort to examine the attesting witnesses. The defendant was in a dominating position, the defendant has admitted that he has not informed to the plaintiffs about the execution of the gift deed in his favour by his mother. All these circumstances raise a serious doubt on the conduct of the defendant. In this 24 OS.No.2113/2016 circumstances, I would like to refer the judgment of the Hon'ble Supreme Court in Krishna Mohan Kul Alias Nani Charan Kul and another V/s. Pratima Maity and others [(2004) 9 SCC 468] wherein the Hon'ble Apex Court has observed that ' 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 jealously 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 on his position. This principle has been ingrained in Section 111 of the Indian Evidence Act, 1872 (in short 'the Evidence Act'). The rule here laid down is in accordance with a principle long acknowledged and administered in the Courts of Equity in England and America. This principles is that he who bargains in a matter of advantage with a person who places confidence in him is bound to show that a proper and reasonable use has been made of that confidence. The transaction is not necessarily void ipso facto nor is it necessary for 25 OS.No.2113/2016 those who impeach it to establish that there has been fraud or imposition, but the burden of establishing its perfect fairness, adequacy and equity it cast upon the person in whom the confidence has been reposed.
26. Another judgment which I would like to mention here is Pratima Chowdhury V/s. Kalpana Mukherjee and another [(2014) 4 SCC 196] wherein the Hon'ble Apex Court has observed that '
45. When parties are in fiduciary relationship, the matter 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 Mushib, wherein this Court examined the twin concepts of 'fiduciary relationship' and 'undue influence' and observed as under (AIR 800, para 3-
7) "3. We may now proceed to consider what are the essential ingredients of undue influence and how a plaintiff who seeks relief on this ground should proceed to prove his case and when the 26 OS.No.2113/2016 defendant is called upon to show that the contract or gift was not induced by undue influence. The instant case is one of gift but it is well settled that the law as to undue influence is the same in the case of a gift inter vivos as in the case of a contract.
4. Under Section 16(1) of the Contract Act 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. This shows that the court trying a case of undue influence must consider two things to start with, namely, (1) Are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor? And (2) Has the donee used that position to obtain an unfair advantage over the donar?
5. Sub-section (2) of the section is illustrative as to when a person is to be considered to be in a position to dominate the will of another. These are inter alia (a) where the donee holds a real or apparent authority over the donor or where he stands in a fiduciary relation to the donor, or (b) where he makes a contract with a person whose mental capacity is temporarily or permanently 27 OS.No.2113/2016 affected by reason of age, illness, or mental or bodily distress.
6. Sub-section (3) of the section throws the burden of proving that a contract was not induced by undue influence on the person benefiting by it when two factors are found against him, namely, that he is in a position to dominate the will of another and the transaction appears on the face of it or on the evidence adduced to be unconscionable.
7. The three stages for consideration of a case of undue influence were expounded in Raghunath Prasad v. Sarju Prasad, in the following words (IA p.105) ' ...... In the first place the relations between the parties to each other must be such that one is in a position to dominate the will of the other. Once that position is substantiated the second stage has induced by undue influence. Upon the determination of this issue a third point emerges, which is that of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other. 28 OS.No.2113/2016
27. Keeping in view the aforementioned observation, I am of the view that, in the present case though the plaintiffs have not raised the above mentioned contention, the circumstances of the case warrants the adoption of the aforementioned observation to the case in hand, and the same is necessary in order to adjudicate the lis between the parties properly and finally. Therefore, for the aforementioned reasons, the afore cited principles are aptly applicable to the case in hand. The circumstances raises a serious doubt on the conduct of the defendant. Therefore, for the aforementioned reasons I hold that, the plaintiffs and the defendant are entitled for the suit property, the suit property is liable to the partitioned, the gift deed dated 10.03.2014 needs to be declared as void, and the same does not bind on the plaintiffs share and the plaintiffs are entitled to claim accounts from the defendant. According, I answer issues No.2, 3, 4 and 8 in the 'Affirmative'.
28. Issue No.7:- The defendant has contended in his written statement that the plaintiffs have not paid the court fee in respect of the reliefs claimed by them, the plaintiffs have assailed the gift deed dated 10.03.2014 executed by Smt.Gowramma in 29 OS.No.2113/2016 favour of the defendant, the plaintiffs ought to have paid the court fee on the market value of the suit schedule property, the plaintiffs have virtually sought for cancellation of registered gift deed, in order to avoid the payment of court fee, the plaintiffs have sought for partition in respect of the suit schedule property and cancellation of gift deed as ancillary relief. Hence, the plaintiffs are liable to pay court fee on the value of the subject matter.
29. At this juncture, I would like to refer Section 35(2) of the Karnataka Court Fees & Suit Valuation Act, 1958 which read thus.-
Section 35 Partition Suits.- (1) xxxxxx (2) In a suit for partition and separate possession of joint family property or property owned, jointly or in common, by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates:--
Rupees fifteen if the value of plaintiff's share is Rs.3,000 or less;
Rupees thirty if the value is above Rs.3,000 but not more than Rs.5,000;
Rupees one hundred if the value is above Rs.5,000 but below Rs.10,000 and 30 OS.No.2113/2016 Rupees two hundred if the value is Rs.10,000 and above.
30. In the case in hand till the present suit is filed the defendant was giving Rs.10,000/- per month to the plaintiffs, which shows that the plaintiffs were also in the possession of suit property. Though the plaintiffs were not in actual possession their possession over the suit property may be termed as the constructive possession. In the circumstances of the case, I would like to refer the judgment of the Hon'ble Supreme Court in Suhrid Singh Alias Sardool Singh V/s. Randhir Singh and others [(2010) 12 SCC 112] wherein the Hon'ble Supreme Court has held that
7. Where the executant of a deed wants to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to 31 OS.No.2113/2016 sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of he deed, he has to pay ad valorem court fee on the consideration stated in the sale deed. If b, who is a non-
executant, is in possession and sues for a declaration that the deed is null and void and does not bind him or his share, he has to merely pay a fixed court fee of Rs.19.50 under Article 17(iii) of the Second Schedule of the Act. But if B, a non-
executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act.
8. Section 9(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief 32 OS.No.2113/2016 is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7.
31. Another judgment upon which the plaintiffs wants rely is in Writ Petition No.68695/2010 (GM-CPC) wherein the Hon'ble High Court of Karnataka has held that 'Therefore, on coming to know of the sale deed, she has filed the suit for partition and separate possession of her 1/3rd share in the property. Once the aforesaid facts are not in dispute, merely because, she wanted an declaration that the sale deed is not binding on her, without seeking cancellation of sale deed, or as held by the Trial Court, until the sale deed is cancelled she will not be entitled to a share, she is not under an obligation to value the suit in the manner the defendants want. The suit is one for partition. The property is inherited and, admittedly, she is in possession of the same. Therefore, the suit is properly valued under Section 35(2) of the Act and the Court fee paid is sufficient. In that view of the matter, the order of the trial Court is incorrect and requires to be set aside.
33 OS.No.2113/2016
32. In the instant case as I have discussed herein above, the defendant has admitted in his cross-examination that he was depositing the money to the account of the plaintiffs, which shows that the defendant has admitted the joint possession of himself and the plaintiffs over the suit property. '£À£Àß CPËAmï¤AzÀ vÉÃd¹é¤AiÀĪÀgÀ CPËAmïUÉ ¥Àæw wAUÀ¼ÀÄ ºÀtªÀ£ÀÄß ¥ÁªÀw¸ÀÄwÛzÉÝ JAzÀgÉ ¸Àj. ªÁ¢AiÀĪÀgÀÄ ¥Àæ¸ÀÄÛvÀ zÁªÉAiÀÄ£ÀÄß zÁR°¸ÀĪÀªÀgÉUÀÆ £Á£ÀÄ ºÀtªÀ£ÀÄß ¥ÁªÀw¸ÀÄwÛzÉÝ.'
33. At this juncture, it is relevant to mention here the observation made by the Hon'ble Supreme Court in Neelavathi Vs M. Natarajan [ AIR 1980 SCC 691] wherein the Hon'ble Apex Court has held that 'the general principle of law is that in the case of co-owners, the possession of one is in law possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession. Unless there is a clear averment in the plaint that there has been exclusion from joint possession. It cannot be said that the averment in the plaint that the plaintiff could not remain in joint possession as he was not given any income 34 OS.No.2113/2016 from the joint family properties would amount to exclusion from possession.'
34. Here in the present case, the defendant has admitted the joint ownership of himself and the plaintiffs over the suit property. Under such circumstances, the court fee paid by the plaintiffs is sufficient. Accordingly, I answer Issue No.7 in the 'Negative'.
35. The plaintiffs have claimed the mesne profits from the defendant the same shall be adjudicated in the final decree proceedings.
36. Issue No.9:- In view of the findings given on issue Nos.1 to 8, I proceed to pass the following.-
ORDER The suit of the plaintiffs is decreed in part. The plaintiff No.1 is entitled for 1/3rd share in the suit property.
The plaintiffs No.2 and 3 are together entitled for 1/3rd share in the suit property.
35 OS.No.2113/2016
Defendant is entitled for 1/3rd share in the suit property.
Gift deed dated 10.03.2014 registered as document No.BMH-1-10323-2013-14, Block No.1, stored in CD No.BMHD667 dated 10.03.2014 registered in the office of the Sub-Registrar at Bommanahalli (Jayanagar) Bengaluru, pertaining to the suit schedule property is invalid.
No order as to cost.
Draw preliminary decree accordingly.
(The judgment is written by me, given the same to stenographer, typed by her, corrected and then pronounced by me in the Open Court, this the 24th day of February, 2020) (SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFF/S:-
PW.1 : Tejaswini LIST OF DOCUMENTS MARKED FOR PLAINTIFF/S:-
Ex.P.1 : Certified copy of stamp paper dated 28.09.1959.
Ex.P2 : Certified copy of gift deed dated 11.02.1974
36 OS.No.2113/2016
Ex.P3 : Certified copy of gift deed dated 10.03.2014
Ex.P4 : Khata extract
Ex.P5 : Notarized copy of PAN card
Ex.P6 : Birth certificate of PW1
Ex.P7 : Death certificate of Kumudavathi
Ex.P8 : Endorsement issued by BBMP under RTI
Exs.P9 & 10 : Tax paid receipts
Ex.P11 : Reply letter issued by BBMP under RTI
Ex.P12 : Certificate issued by BBMP under RTI
Ex.P13 : Tax paid receipt issued by BBMP under RTI
Ex.P14 : B' khata issued by BBMP under RTI
Ex.P15 : Certified copy of house property
Ex.P16 : Certified copy of Will dated 07.10.2009
Ex.P17 : Bank statement of PW1
LIST OF WITNESSES EXAMINED FOR DEFENDANT/S:-
- Nil -
LIST OF DOCUMENTS MARKED FOR DEFENDANT/S:-
- Nil -
(SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru.