Bangalore District Court
Kum. Divya vs Unknown on 19 April, 2017
THE COURT OF XXXIX ADDITIONAL CITY CIVIL JUDGE
BANGALORE CITY
Dated on this the 19th day of April 2017
-: Present :-
Smt. Hemavathi, BBM, LL.B,
XXXIX Additional City Civil & Judge,
Bangalore City.
ORIGINAL SUIT NO. 1371/2013
Plaintiff:-
Kum. Divya, since minor represented
by her natural guardian Smt.Roop.V.
W/o.Late Srinivasa, R/o.No.4, 3rd
Cross, 50 Feet Road, Raghavendra
Block, Srinagara, Bengaluru-50.
[By Sri.S.Girish, Advocate]
/ Versus /
Defendants :-
1. Kumara S/o. Late Krishna, 35
years, R/o.No.27/3/4, 3rd Cross,
Raghavendra Block, Srinagara,
Bengaluru-50.
2. Smt.Chandrakala W/o. Betaswamy,
37 years, R/o.No. 908, 7th Main
Road, Raghavendra Block,
Srinagara, Bengaluru-50.
3. Smt.Sujatha W/o.Shankar, 33
th
years, R/o.No.59, 7 Main Road,
Mahalakshmi Layout, Saraswathi
Puram, Bengaluru.
4. Smt.Nagarathna W/o.Srinivasa, 31
years, R/o.No.25/2, 1st Main Road,
3rd Cross, Kalidasa Layout,
Srinagara, Bengaluru-50.
(Sri.N.G.R., Advocate for D-1.
Sri.K.P., Advocate for D.2 to D.4)
Date of Institution of the : 18.02.2013
suit
Nature of suit : Suit for partition.
Date of commencement of : 08.11.2013
evidence
Date on which the : 19.04.2017
judgment is pronounced
Years Months Days
Duration taken for disposal :
04 02 07
***
JUDGMENT
This is a suit filed by the plaintiff against the defendants for the relief of partition of the suit schedule property by metes and bounds and allot her 1/5th share in the suit schedule property and to declare that the registered Gift Deed dated 6.1.2011 executed by S.Krishna in favour of first defendant before Sub-Registrar Office, Chamarajapet, Bengaluru is not binding on her and such other reliefs with costs.
2. The brief facts of the plaintiff's case are that one Krishna S/o. Singegowda is her grandfather. He had five children by name Srinivas, who is the father of plaintiff and defendants herein and her father died on 26.11.2004. Her grandfather died on 23.3.2012 and during lifetime, her grandfather had acquired suit schedule property under registered Sale Deed dated 24.3.1975. His wife predeceased him. In order to avoid litigation between his children in respect of suit property, he had executed a registered Will dated 28.5.2010 wherein he had clearly mentioned that the suit schedule property should go to all his children. Later he cancelled the said Will under registered Deed of Cancellation of Will dated 2.8.2010 thinking that it is not feasible to divide the suit property into five parts and he wanted to sell the same and divide the sale consideration amount among all his children. Thereafter, he had put the suit schedule property for sale and negotiated with one Kempaiah S/o.Thimmegowda who had agreed to purchase the suit property. But, the first defendant did not want to sell the schedule property to the third party. Hence, he agreed to purchase the same and he made his father to believe that he would purchase the schedule property for sale consideration and under the guise of purchasing the property, the first defendant had made Krishna to believe that in order to purchase the suit property he had to sign some of the documents in the Office of Sub-Registrar and he had taken Krishna to the Sub-Registrar Office and made him to sign on Gift Deed instead of sale deed which defendant No.1 himself prepared and fraudulently obtained gift deed in respect of suit property in his favour. Krishna who is the grandfather of plaintiff had never intended to gift the suit schedule property to the defendant alone. The first defendant by undue influence and misrepresenting his father fraudulently and unlawfully got the schedule property gifted in his name by cheating the plaintiff and his sisters and the first defendant obtained the said gift deed without consideration and Krishna had not voluntarily executed alleged gift deed and the first defendant had not accepted the same. This plaintiff issued a legal notice on 4.1.2013 to the first defendant calling upon him to divide the suit property and allot her share of her father and put her in possession of the same, for which the first defendant gave evasive reply. Hence, filed the suit.
3. Defendant No.1 filed written statement admitting the relationship of the parties with Krishna and his father Krishna died on 23.3.2012 and father of the plaintiff died on 26.11.2004 and suit schedule property was acquired by Krishna under registered Sale Deed dated 24.3.1975, but he stated in the written statement with respect to the averments in plaint that Krishna had executed registered Will on 28.10.2012 bequeathing the suit schedule property in favour of his all the five children and he cancelled the said Will under the registered cancellation of said Will on 2.8.2010 thinking that it is not feasible to divide the said property into five parts and he wanted to sell the same and divide the money between his children, is not known to him. He denied that after cancellation of Will his father had put for sale of the suit property and negotiated with one Kempaiah and said Kempaiah had agreed to sell the suit property, but this defendant did not want to sell the suit property to third party, hence, he agreed to purchase the same from his father and he made his father to believe that he would purchase the suit property from him for sale consideration and under the guise of purchasing, he made believe his father and took him to the Sub-Registrar office and obtained the signature on the Gift Deed by fraudulently, with undue influence and misrepresenting his father. He further contended that, there is no cause of action for the suit and the suit schedule property is self acquired property of his father Krishna and under registered Gift Deed dated 6.1.2011, his father gifted the suit property in his favour. Hence, the suit schedule property is the absolute property, there is no recital which gives any scope for construing it as conditional gift or preserving right of revocation and only condition in the gift deed is that, the donor was having right of possession over the suit property till his death, subsequently his father enjoyed the possession till his death on 23.3.2012 and after death of Krishna, said condition becomes infructuous and in the absence of recital reserving right of revocation, gift deed cannot be cancelled by the plaintiff and she cannot claim partition. There is no cause of action for the suit. Hence, prayed to dismiss the same.
4. Defendant No.2 to 4 appeared through their Advocate and defendant No.2 filed written statement, which has been adopted by the defendants No.3 and 4. In the written statement they have supported the case of the plaintiff and further, contended that first defendant fraudulently and unlawfully by playing mischief behind the back of plaintiff and these defendants has managed to obtain the alleged gift deed from their father and the first defendant had agreed to purchase the suit property for valuable sale consideration amount, because of that reason, their father had cancelled the sale agreement entered into with one Kempaiah and mutual agreement was entered into on 18.9.2010 between Kempaiah and father of these defendants wherein it is specifically mentioned that, in order to sell the suit schedule property to Kumar, he has cancelled the sale agreement with Kempaiah and the first defendant used to harass their father both mentally and physically in order to get the suit schedule property in his favour. But, their father was not agreeable for the same. In this regard, a written complaint was lodged by this defendant No.2 to the concerned police who have issued an endorsement on 26.9.2012 to approach the Civil Court and their father is habitual drunker, by taking advantages of the same, the first defendant has managed to get gift deed fraudulently by cheating other co-sharers. Now the first defendant is utilising the entire rent derived from the suit property, though he has no exclusive and independent right to receive and utilise the same. These defendants are also having each 1/5th share over the suit property. Hence, prayed to allow the suit and decree the same as prayed and also to declare that this defendant No.2 is also having 1/5th share over suit property and this defendant is also entitled to mesne profits.
5. On the basis of the pleadings of the parties, issues and one additional issue was framed. But, while dictating the Judgment, it is noticed by the Court that the defendant No.2 in the written statement has sought for share in the suit property and defendants No.3 and 4 have adopted the written statement of defendant No.2. But, there is no issue on this point. Hence, one additional issue has been framed on that point today i.e., on 18.4.2017.
6. The issues and additional issues framed by this Court are as under :
ISSUES (1) Whether the plaintiffs prove that, the suit schedule properties are the joint family properties of plaintiffs and defendants as contended? - (Deleted as per order dated 4.4.2017) (2) Whether the plaintiffs prove that the Gift Deed dated 6.1.2011 executed by Late Sri.S.Krihsna in favour of D.1 is not binding on them as contended?
(3) Whether the plaintiffs are entitled for the relief of partition and for separate possession of 1/5th share of the suit schedule properties as claimed ?
(4) What order or decree ?
Additional issue framed on 4.4.2017 :
(1) Whether the plaintiff proves that the defendant No.1 has fraudulently obtained Gift Deed dated 6.1.2011 ?
Additional issue framed on 18.4.2017 :
Whether the defendants No.2 to 4 are entitled for the share in the suit property?
7. Plaintiff examined her Mother Guardian - Roopa.S. as P.W.1 and got marked 10 documents as per Exs.P.1 to P.10 and also examined one Ramu as P.W.2 and one Kempaiah as P.W.3. During the course of cross- examination of D.W.1, got marked two documents as Exs.P.11 and P.12. The Defendant No.1 initially examined his special power of attorney holder as well as his wife as D.W.1. Later he has withdrawn the said affidavit on 20.8.2015. Thereafter, defendant No.1 examined him as D.W.2. He also examined his wife Vanajakshi as D.W.3 and on behalf of defendant No.1 nine documents are marked as Exs.D.1 to D.9. Defendant No.2 examined her as D.W.4, marked 2 documents as Exs.D.10 and 11.
8. Heard both sides.
9. My findings on the above issues are as follows:
Issue No.1 : Deleted.
Issue No.2 : In the Affirmative.
Issue No.3 : In the Affirmative.
Addl.Issue
Dated 4.4.2017 : In the Affirmative.
Addl. Issue
Dated 18.4.2017: In the Affirmative.
Issue No.4 : As per final order, for
the following:
REASONS
10. Additional Issue No.1 :- Herein the fact that one Krishna S/o. Singegowda is the father of defendants and also one Late Srinivas and plaintiff is the daughter of Late Srinivas and said Srinivas died on 26.11.2004, Krishna died on 23.3.2012 and his wife predeceased him and the suit schedule property is the self acquired property of Krishna having purchased the same registered Sale Deed dated 24.3.1975, are admitted facts.
11. It is the case of the plaintiff that during lifetime, her grandfather Krishna executed a Registered Will dated 28.5.2010 bequeathing the suit property in favour of all his children and later he cancelled the said will by registered Deed of Cancellation of Will dated 2.8.2010 with an intention to sell the same and to divide the money between his all the children. With respect to this, the first defendant in his written statement contended that these facts are not known to him. It is further case of the plaintiff that, after cancellation of the Will, her grandfather Krishna had brought the suit property for sale and he negotiated with one Kempaiah S/o.Thimmegowda and said Kempaiah agreed to purchase the suit property, but the defendant No.1 did not want to sell the suit property to the third party and he agreed to purchase the same for valuable sale consideration amount and the first defendant made his father to believe that he would purchase the schedule property from him for sale consideration and under that guise, he made said Krishna to believe that to purchase the suit property he had to sign some documents in the office of the Sub-Registrar and first defendant had taken Krishna to the Office of Sub-Registrar and obtained his signature on the gift deed prepared by him fraudulently, unlawfully by undue influence and by misrepresenting, by cheating the plaintiff and said Krishna never wanted to transfer the suit property without consideration and he had no intention to give the property to the defendant No.1 alone.
12. Per contra, the defendant No.1 in the written statement contended that these averments are false and incorrect.
13. In the chief-examination D.W.2 deposed on partition with his written statement. In the course of cross-examination he admitted that Ex.P.4 is the Will executed by his father and Ex.P.5 is the cancellation of Ex.P.4. and his father had cancelled the Will as per Ex.P.5 and brought the said property for sale. He also admitted that his father had entered into sale agreement with Kempaiah to sell the property and later it was cancelled.
14. So, this evidence clearly proves that Krishna, who is the grandfather of plaintiff and father of defendants, had executed a Will bequeathing the suit property in favour of his all the children and later he cancelled it and he brought the same for sale and he entered into sale agreement with Kempaiah and it was also cancelled.
15. Ex.P.4 is the Will dated 28.5.2010 executed by Krishna reveals that he had bequeathed the suit property in favour of defendants No.1 to 4 and also plaintiff and her mother Roopa, who is P.W.1 and Ex.P.5 which the Deed of Cancellation of Will reveals that, with an intention to make alternative arrangements, he had cancelled the said Will as per Ex.P.4. Ex.D.1 is the unregistered agreement dated 18.9.2010 between Krishna and Kempaiah S/o.Thimme Gowda, where it is recited that there was oral sale agreement on 7.8.2010 between them for sale of suit property, but subsequently Krishna has decided to sell the property in favour of his son K.Kumar, who is the first defendant herein. The said oral sale agreement has been cancelled and he received the advance sale consideration amount of Rs.73,000/- paid by him to said Krishna. This document was confronted to P.W.3 Kempaiah in his cross- examination by the Advocate for defendants No.2 to 4. P.W.3 admitted the contents of Ex.D.1. Though this document was produced in the course of cross- examination of P.W.3, there is no cross-examination by the defendant No.1 on this document. On the other hand, D.W.2 in his cross-examination has admitted that Ex.D.1 and P.11 are in the handwriting of his wife and Ex.D.1(b) is signature of his father and he admitted that as per Ex.D.1, sale agreement between his father and Kempaiah was cancelled. He also deposed that he admitted the contents of Ex.D.1. D.W.3 who is the wife of D.W.2 in her cross-examination admitted that Ex.D.1 was executed when the sale agreement with Kempaiah was cancelled and she also admitted that it is in her handwriting. In view of these evidence of D.W.2 and 3, it is proved that the contents of Ex.D.1 are true and correct.
16. As already discussed above, as per recital in Ex.D.1, Krishna had decided to sell the suit property in favour of his son Kumara, when such being the fact, it is the defendant No.1 who has to explain under what circumstances his father Krishna had changed his decision and diverted his mind instead of selling the property he executed gift deed in his favour. D.W.2 in his cross- examination admitted that his wife lodged complaint against his father as per Ex.P.11 and as per Ex.P.12 his father had given statement before the police and there was galata between his wife and sister in the year 2010-
11. D.W.3 in her cross-examination deposed that she lodged complaint as per Ex.P.11 against her father-in-law Krishna and she took her father-in-law to the Police Station and got the statement as per Ex.P.12 and after statement as per Ex.P.12, her father-in-law had cancelled the Will. Ex.P.11 is the Copy of the Complaint dated 25.2.2010 lodged by D.W.3 against her father-in-law Krishnappa and sister-in-laws defendants No.2 to 4 herein, where she alleged that her sister-in-law Chandrakala had taken the golden ornament of her mother-in-law without giving any single ornament to her and she abused her and her husband with foul languages. Admittedly, there is no allegations against her father-in-law Krishnappa. In Ex.P.12 is the statement given by Krishna before the police stating that he divides the property into six equal shares if he sells it and his daughter-in-law can reside in the said house and he would not give any trouble to her. Ofcourse, the statement under Section 161 Cr.P.C. has not relevancy in the Civil suit. But both the parties have admitted that it is the statement given by Krishna before the police in the complaint lodged by wife of defendant No.1 as per Ex.P.11 and nobody has denied it and even it is not the contention of the defendant No.1 that this statement was obtained by force, coerce, etc., Further, D.W.3 admitted that after Ex.P.12 Krishna cancelled the Will and Ex.D.1 which is written by D.W.3 is also subsequent to Ex.P.11 and Ex.P.5 which is the Deed of Cancellation of Will. So, by considering all these admitted recitals in Ex.D.1, P.11 and aforesaid evidence of D.W.2 and D.W.3, it clearly supports the case of the plaintiff that Krishna had cancelled the Will with an intention to sell the property and divide the sale proceeds between all his children and because of that reason he entered into a oral sale agreement with Kempaiah and he also cancelled it as per Ex.D.1 with the intention to sell the property in favour of Kumara, who is the first defendant.
17. Either in the written statement or in the evidence or in the course of cross-examination of P.W.1, nothing is elicited as to what is the reason to execute the gift deed in favour of defendant No.1 alone, by deviating his intention to sell the property by Krishna. In the course of cross-examination of P.W.1 ofcourse, it is suggested that there is no recital in Ex.P.5 about distribution of sale proceeds of the suit property. Ofcourse, there is no recital in Ex.P.5 that with an intention to sell the property he had cancelled the said Will, but he had clearly mentioned that with an intention to make alternative arrangement, he cancelled the said Will and when in an admitted document like Ex.D.1 it is mentioned that he intended to sell the same to Kumara. It is very clear that deceased Krishna had no other intention except to sell the property during his lifetime. D.W.2 in his cross-examination deposed that his sisters were harassing his father demanding the share and when it was suggested to him that what was the special reason to execute the gift deed in his favour by his father, he deposed that, as other children of his father were pressurizing him for money and they were harassing him, he executed a Gift Deed. If his sisters were harassing his father demanding the share, definitely his father would not have executed gift deed to him alone. This itself is sufficient to say that his father had intention to sell the property and divide the sale proceeds amount to his all the children during his lifetime. Further he deposed that as on the date of Ex.D.5, himself, his wife, his father went to the Office of Sub-Registrar and D.W.3 also deposed that her father-in-law and they together went to the Office of Sub- Registrar and she is one of the witnesses to the said Gift Deed. D.W.2 deposed that the witness to the Ex.P.7/D.5 are friends of his father, he deposed that he is acquainted with witness Mahesh. Further D.W.3 deposed that witness No.2 Mahesh is working in the Office next to the Sub- Registrar and D.W.2 also deposed that he is aged about 38 to 39 years. So, it is very clear that this witness is the witness known to the defendant No.1 and he is not the friend of Krishna who is the father of defendant No.1. If really he is the friend of Krishna, this defendant No.1 would have examined him. But, when he has not examined said witness, this itself is sufficient to draw adverse inference that, said witness Mahesh is not the friend of S.Krishna, he is the friend of defendant No.1. When the said Krishna had cancelled the sale agreement with Kempaiah with an intention to sell the property in favour of his son, if really the Gift Deed was executed by Krishna voluntarily, he would have taken the signature of said Kempaiah as a witness to the said Gift Deed. This is also sufficient to say that how this document Ex.D.5/Ex.P.7 was came into existence.
18. Though in the written statement nowhere it is stated that his father had given money to his children towards their share, in the cross-examination he deposed that since 1995 other children of his father were harassing him by demanding share in the property and his father had given amount to them towards their share. If that is true, it would have been recited in Ex.D.5. Further, in Ex.D.5/P.7, at page 3 there is a recital as per Ex.D.5 (a) :
" DzÀgÉ £Á£ÀÄ £À£Àß fêÀAvÀ EgÀĪÀªÀgÀÉUÀÆ µÉqÀÆå¯ï ¸ÀéwÛ£À°è ªÁ¹¸ÀĪÀ ºÀPÀÌ£ÀÄß ºÉÆA¢zÀÄÝ CzÀPÉÌ £À£Àß ªÀÄUÀ ¸ÀºÀ M¦àgÀÄvÉÛãÉ"
19. Further, in Ex.P7/Ex.D.5, there is no recital about Exs.P.4 and P.5. If the Gift Deed was executed by Krishna knowing its contents, there would have been recital about Exs.P.4 and P.5. Further, D.W.3 admitted that her father-in-law was addicted to alcohol. These are all sufficient to say that, under which circumstance this document came into existence.
20. It is the arguments of the learned advocate for defendant that there is no proof with respect to the allegation in para 8 and 9 of plaint and no material is produced.
21. The learned advocate for defendant No.1 has relied upon decisions reported in :
1) AIR 2016 Delhi 1 - Sehdev Singh Verma Vs. J.P.S. Verma another, wherein it is held in Head Note (C) : Transfer of Property Act (4 of 1882), S.126 - Civil P.C. (5 of 1908), O.6 R.4 - Suit for revocation of gift deed - Ground of fraud and misrepresentation - Pleadings - No particulars regarding alleged fraud/undue influence played /exercised by donees given in plaint - Plaint silent as to what and when were representation made by donees which led donor to execute gift deed which were ultimately found to be false - No averments that donees were in position to dominate will of doner and used that position to obtain unfair advantage - Plaint lacking in material particulars - In circumstances, no issue can be settled between parties regarding fraud/undue influence."
2) AIR 2004 Madras 6 - S.Jayapaul Vs. Pappayee Ammal, wherein it is held that :
"(A) Evidence Act (1 of 1872), S.68 -
Proviso - Execution of Gift deed - Specific denial of - Document has to be proved by examining attesting witnesses - But such denial cannot be made by any person unless he has right to succeed or had any other right in property."
22. Ofcourse, no documentary proof has been produced by the plaintiff to show that the first defendant by making his father believe that the first defendant would purchase the suit property for sale consideration, for that he signed some document in the Office of the Sub- Registrar, but the recital in the documents produced by the plaintiff and defendants and also the oral evidence as discussed above are sufficient to say that Krishna had not executed Ex.P.7/Ex.D.5 knowing very well that it was a Gift Deed and it was obtained by defendant No.1 by mis- representing his father.
23. The learned advocate for plaintiff has relied upon decisions reported in :
1) AIR 2005 NOC (Andhra Pradesh) 572
- Kunche China Mangamma and others Vs. Kollapu Mangamma (Died) and others, where it is held - (A) Transfer of Property Act (4 of 1882), Suit schedule.122, 123, 126 - Settlement deed - Suspicious circumstances - Father giving all properties to one daughter and her children - No share given thereunder to other daughters of wife - Father was old and admitted to hospital at time of execution of settlement deed - He was attended by beneficiary daughter and her husband though other daughters and their mother were also visiting him - Other documents and alleged Will executed by him at earlier point of time were showing that he was treating all daughters equally
- No enmity or ill-feelings towards other daughters - No difference in family -
Evidence of witnesses showing that he was not in sound state of mind at time of execution of settlement, deed - He was not in position to understand things and died soon after discharge from hospital - No reason given why he excluded other heirs in preference to only one daughter - Settlement deeds cannot be said to be executed voluntarily by him - Not valid -
Death of wife during pendency of litigation
- All daughters would be entitled to equal share in property of their father.
2) AIR 1985 Panjab and Hariyana 315 -
Ajmer Singh and others Vs. Atma Singh -
wherein it is held that : Transfer of Property Act (4 of 1882), S.122 - Gift deed - Voluntary execution - Suit by donor, a very old man, for declaration and possession of land on ground that gift deed executed by him was not a voluntary act - Onus shifts on donee to prove that the gift was made voluntarily."
3) AIR 1972 Madras 413 - S.Rathnam Naidu and another Vs. Kanni Ammal and others, wherein it is held that : T.P.Act (1882), S.122 - Settlement deed - undue influence - Burden of proof .
24. In view of these discussions, I hold that the plaintiff has proved that the defendant No.1 has fraudulently obtained Gift Deed dated 6.1.2011. Hence, I answer this issue in the affirmative.
25. Issues No.2 and 3 : - Herein, the plaintiff has sought for partition of the suit schedule property and also relief of declaration to declare that the Gift Deed dated 6.1.2011 is not binding on her.
26. It is the arguments of the learned advocate for defendant that the suit schedule property is the self- acquired property of Krishna. When that is so, the plaintiff has no right to challenge the said Gift Deed and said Krishna was alive even for a period of one and half years after execution of Ex.P.7/Ex.D.5. If he had any grievance, he would have challenged it and there is no condition for revocation of this Gift Deed, hence, Section 126 of T.P.Act is not applicable and plaintiff being the legal representatives of Krishna has no right to file this suit and even she has not sought for cancellation of said Gift Deed.
27. It is true that, plaintiff is not a party to the Gift Deed and there is no recital in Ex.P.7/Ex.D.5 for revocation or cancellation of said Gift Deed. But, it is the defendant No.1 who has to prove that this Gift Deed was acted upon during the lifetime of his father and he had occasion to know about the contents of this document. Though he produced Ex.D.6 - property register extract, where name of K.Kumar is entered by rounding off the name of Krishna as owner of the property he has not produced any document about the proceedings of the BBMP for change of khatha based on the Gift Deed. So, this document no way helps the defendant No.1 to say that soon after the Gift Deed khatha has been changed in his name. If really khatha has been changed in the name of defendant No.1, there would not have been name of Krishna and there was no necessity to round off his name and entering the name of K.Kumar. So, this document no way helps the defendant No.1 to say that khatha changed during the lifetime of Krishna.
28. Section 126 of Transfer of Property Act says that, the donor or donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked, but gift which the parties agrees shall be revocable either wholly or in part, at the mere will of the donor is void wholly and a gift may also be revoked, if there is a contract for payment of consideration, but it was not paid. So, it is very clear that either donor or donee can revoke or suspend the gift, but revoking or suspending the Gift Deeds different from challenging the gift deed by the third party on the ground of fraud, undue influence on the part of donee. Herein, admittedly, plaintiff is neither donor nor party to the Gift Deed. So, she cannot suspend or revoke the Gift Deed. Herein she has sought for declaration to declare that said Gift Deed is not binding on her. But, she has not specifically sought for cancellation of Gift Deed. Ofcourse, she ought to have sought for cancellation of Gift Deed. But, when she proved that Gift Deed was obtained by defendant No.1 fraudulently, the defendant No.1 cannot acquired right over the property under a document acquired by fraud and undue influence. When such being the fact, the property belonging to Krishna remains intestate. In such circumstances it is to be divided between his Class-I legal heirs. Therefore, merely because that the plaintiff has not sought for cancellation of the Gift Deed, it cannot be said that Gift Deed dated 6.1.2011 is binding on her when it is proved that it is obtained by fraud, it is nothing but void document. So, the suit schedule property is to be divided between the plaintiff and defendants No.4 equally. When such being the fact, the said Gift Deed is not binding on the plaintiff's share.
29. The learned advocate for defendant No.1 has relied upon decisions reported in :
1) 1988 (1) KLJ 80 - Narayanamma and another Vs. Papanna, wherein it is held that : (A) Transfer of Property Act, 1882 - Section.126
- Recital as to maintenance in Gift deed in absence of specific recital rese5rving rights to revocation on failure to perform condition mentioned in gift deed - Held, cannot have the effect of making the Gift a conditional Gift enabling donor to revoke the same on failure to perform such condition. And (B) - Transfer of Property Act, 1882 - Section 126 -
Circumstances under which Gift can be cancelled or rescinded stated.
2) (2009) 6 Supreme Court Cases 160 - B. Muslim law - Gift - Registered of gift -
Presumption of validity - Burden of proof in case of challenge to validity of registered gift deed - A registered document, held, carries with it the presumption of its validity - Herein, a party challenging the genuineness of a registered Gift Deed must show that the transaction was not valid - Transfer of Property Act, 1882 - S.123 - Registration Act, 1908 - Evidence Act, 1872 - Ss. 114 and 102.
3) AIR 2014 Kerala 80 - Balachandran Vs. S.Sujatha and others. it is held that : Specific Relief Act (47 of 1963), S.34 -Transfer of Property Act (4 of 1882), S.122 - Suit for partition - Declaration sought that gift deed in favour of pre-decessor of defendants over property was void - Plaintiff unable to prove that gift deed executed by his mother in favour of his brother was fabricated deed created by his brother - predecessor of defendant - Gift deed was registered document - Cannot be declared void - Claim for partition, not tenable.
4) AIR 2004 Calcutta 276 - Balai Chandra Parui Vs,. Smt.Durga Bala Dasi and others -
Transfer of Property Act - Suit schedule.126, 42 - Registration Act (16 of 1908), S.34(3) - Gift - Revocation - When possible - Gift deed executed by widow who was literate and not pardanashin - Contents of deed explained to her - Deed signed by her, duly attested and registered - Absence of coercion, fraud and undue influence - gift deed could not be revoked.
30. When the plaintiff proved that defendant No.1 has fraudulently obtained the Gift Deed dated 6.1.2011 and because of that, it is a void document, and the property is to be divided between the legal heirs of deceased Krishna, the plaintiff along with her mother is having 1/5th share over the suit property as the suit schedule property is the self-acquired property of Krishna, if it was legally executed, plaintiff has no right to challenge the said Gift Deed and also she cannot claim relief that said Gift Deed is not binding on her share. But, when this suit is filed for partition contending that defendant No.1 had obtained this Gift Deed fraudulently by undue influence and mis-representation and it is proved by the plaintiff though the plaintiff has not sought for cancellation of sale deed, the suit cannot be dismissed on that ground because the Court has power to mould the relief if the parties are deserved for it and the facts and circumstances of the case warrants to grant such a relief to avoid multiplicity of proceedings. Herein also the very principle of law is applicable. Therefore, I answer Issue No.2 and 3 in the affirmative.
31. Additional Issue No.2 : - In view of my answer to Issues No.1 and 2 and additional Issue framed on 4.4.2017, these defendants No.2 to 4 are also entitled for each 1/5th share being the legal heirs of Krishna. Hence, I answer this issue in the affirmative. But, defendants No.2 to 4 shall pay the court fee with respect to their share.
32. Issue No.4 : - In view of the above discussions, I proceed to pass the following:
ORDER Suit filed by the plaintiff against the defendants is hereby decreed.
By considering the relationship of parties, there is no order as to costs.
It is hereby declared that the Gift Deed dated 6.1.2011 is not binding on the plaintiff and defendants No.2 to 4 and plaintiff and defendants No.2 to 4 are having each 1/5th share over the suit schedule property.
Defendants No.2 to 4 are directed to pay the court fee within ten days from the date of Decree, failing which Office is directed not to furnish the certified copy of Judgment and Decree to defendants No.2 to 4.
Draw preliminary decree accordingly.
(Dictated to the Judgment Writer directly on computer, script corrected, signed and then pronounced by me in the open court, this the 19th day of April, 2017.) (Hemavathi) XXXIX Additional City Civil & Sessions Judge, Bangalore City.
*** ANNEXURE
1. List of witnesses examined for plaintiff:
P.W.1 : Roopa
P.W.2 : Ramu
P.W.3 : Kempaiah
2. List of documents exhibited for plaintiffs:
Ex.P.1 : genealogical tree
Ex.P.2 : Death certificate of husband of Roopa-
Srinivas
Ex.P.3 : Death extract of father-in-law of Roopa-
Krishna
Ex.P.4 : C/c of Will
Ex.P.5 : cancellation of Will Deed
Ex.P.6 : paper publication.
Ex.P.7 : Copy of Gift deed
Ex.P.8 : Encumbrance certificate
Ex.P.9 : Office copy of notice
Ex.P.10 : Reply notice
Ex.P.11 : Complaint
Ex.P.12 : Statement of Krishna taken by police.
Ex.P.7(a) : signature of D.W.3.
3. List of witnesses examined for defendants:
D.W.1 : Vanajakshi.
D.W.2 : R.Kumara
D.W.3 : Vanajakshi
D.W.4 : Chandrakala.
4. List of documents exhibited for defendants:
Ex.D.1 : Stamp paper Ex.D. 1(a) : Signature of P.W.3` Ex.D.2 : original power of attorney. Ex.D.3 : Notice Ex.D.4 : Office copy of reply notice. Ex.D.5 : Postal acknowledgement Ex.D.6 : Original registered Gift Deed Ex.D.7 : Property extract Ex.D.8 : Death certificate of Krishna.S. Ex.D.9 : Ration card.
Ex.D.1(b) : Signature of Late Krishna.S. Ex.D.10 : True copy of police complaint Ex.D.11 : True copy of endorsement Ex.D.1(c) : Signature of D.W.4 (Hemavathi) XXXIX Additional City Civil & Sessions Judge, Bangalore City.
*** Md