Bangalore District Court
Sri.Krupakar.B vs Sri.B.C.Lokabhiram on 28 February, 2022
KABC010198962012
IN THE COURT OF XXXV ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH36)
DATED ON THIS THE DAY OF 28th DAY OF FEBRUARY 2022
PRESENT: SRI. SATHISHA L.P., B.A., LL.B.,
C/c XXXV ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU
O.S.No.7400/2012
Plaintiffs : Sri.Krupakar.B.,
S/o.Late Balaram,
Aged about 32 years,
R/at No.644, Out House,
1st Main, 1st Stage,
Indirangar,
Bangalore38.
(By Sri.V.L.S., Advocate)
Vs
Defendants : Sri.B.C.Lokabhiram,
S/o.Late B.V.Chittybabu,
Aged about 60 years,
R/at No.644, Main House,
1st Main, 1st Stage,
Indiranagar, Bangalore38.
(By Sri.K.N.D., Advocate)
2
Date of institution of the suit : 12102012
Nature of the suit : Declaration, Injunction
and Possession
Date of commencement of 13072016
recording of the evidence :
Date on which the judgment : 28022022
was pronounced
Total duration : Years/s Month/s Day/s
09 04 16
(SATHISHA.L.P.)
C/c XXXV Addl.City Civil &
Sessions Judge, Bengaluru
JUDGMENT
The plaintiff has filed this suit against the defendant praying the Court to declare the registered Gift Deed dated 29112001 executed by Smt.B.Anasuya Chittibabu in favour of the Defendant as abinitio and null and void; for cancellation of Gift Deed dated 29112001 executed by Smt.B.Anasuya Chittibabu in favour of the Defendant; For a decree of possession of the portion of 'B' schedule property namely the ground floor marked as H2 in the annexed sketch 3 and put the plaintiff in possession of the same; for an enquiry into mesne profits under Order 20 Rule 12 CPC from the date of suit till the date of realization in respect of the ground floor portion of the 'B' Schedule property with court costs and such other reliefs.
2. In brief, the case of plaintiff is as follows: The plaintiff is the grandson of late B.V.Chitybabu and Smt.Anasuya Chittybabu W/o.late B.V.Chittybabu who were residing in the premises bearing No.644, 1 st Main, 1st Stage, Indiranagar, Bangalore38. The defendant is the second son of Sri.B.V.Chittybabu and Smt.Anasuya Chittybabu W/o.Late B.V.Chittybabu. The entire property bearing No.644, 1 st Main, 1st stage, Indiranagar, Bangalore, consists of four portions constructed for residential purposes. The main house of the building consists of ground and first floor and the outhouse comprising of ground and first floor with a common passage. The entire property comprising all the four portions is described as the 'A' Schedule property.
Late B.V.Chittybabu and his wife Smt.Anasuya 4 Chittybabu have three children namely (1) Smt.B.Premalatha Balaram, since deceased, (2) Sri.B.C.Kodandaram and (3) Sri.B.C.Lokabiram who is the defendant herein. The eldest daughter Smt.B.Premalatha Balaram was an employee of Bharath Electronics Limited and during the course of her employment, she was financially assisting her father to meet the expenses including the repayment of the loan which Sri.B.V.Chittibabu had raised at the time of the construction of the outhouse building.
On 591985, Smt.B.Premalatha Balaram passed away leaving behind plaintiff as her only son and after her demise, out of the provident fund and gratuity funds derived Sri.B.V.Chittybabu from the account of Smt.B.Premalatha constructed the main building supplemented to some extent from his own resources. When plaintiff's mother passed away, he was only a child of 8 years and being a minor was under the care and protection of his grandparents namely B.V.Chittybabu and Smt.B.V.Anasuya Chittybabu. Under these circumstances, he was living with his grandparents who 5 in fact brought him up and educated with all love and affection. He was in fact taking care of his grandmother Smt.Anasuya Chittybabu ever since the date of death of Sri.B.V.Chittybabu on 2072000.
Late B.V.Chittybabu who was the absolute owner of the Schedule property had executed his last Will and Testament on 29101993 while maintaining a sound disposing state of mind. After his death, his last Will and testament has come into operation and has become enforceable. On 29101993, the last Will and Testament was registered as No.199/9394, at pages 243 to 247, Volume 103, Book III, before the Sub Registrar, Shivajinagar, Bangalore.
Sri.B.V.Chittybabu in his last Will and testament dated 291021993 has specifically bequeathed the front portion of the building described as H2 in the annexed sketch of the Will in favour of his wife Smt.Anasuya Chittybabu creating a life estate in her favour permitting her to enjoy only the rents and profits derived from the main building of the Schedule Property. Late B.V.Chittybabu had specifically prohibited 6 Smt.B.V.Anasuya Chittybabu from alienating the property. However, If his wife Smt.Anasuya Chittybabu is dissatisfied with his behaviour, she could alienate the property and from out of the sale proceeds, she must deposit a sum of Rs.1,25,000/ in his name for his future life. After the demise of Sri.B.C.Chittybabu his wife Smt.Anasuya Chittybabu was paying the taxes in respect of the schedule property as evidenced by the tax paid receipt produced by him. Smt.B.V.Anasuya Chittybabu was taking care of him during his minority and she stood as inlocoparenties to him as he was a devoted grandson who took care of his grandmother till she passed away.
According to the covenants amongst others of the registered Will dated 29101993, executed by late B.V.Chittybabu, the property described as schedule H1 namely the outhouse portion comprising ground and first floor was absolutely bequeathed in favour of Smt.Anasuya Chiitybabu and that she shall have the full powers of disposal in respect of the property described and marked as H1 in the 7 sketch appended with the Will in respect of the schedule property. There is absolutely no Prohibition in regard to the right of Smt.Anasuya Chittybabu had become the absolute owner of the property described as H1 of the schedule after the demise of Sri.B.V.Chittybabu. The property described and bequeathed in favour of Smt.Anasuya Chittybabu W/o.Late B.V.Chittybabu is described as 'B' schedule in the plaint.
The property described as H2 in the registered Will dated 29101993 executed by late Chittybabu, his grandfather (the main house portion comprising ground and first floor) was bequeathed in favour of plaintiff to be enjoyed by him as a life estate and ultimately to vest absolutely in favour of plaintiff's children to be borne to him equally. Under these circumstances, the property bequeathed in favour of plaintiff is described as 'Schedule in the plaint. The two sons of Late B.V.Chittybabu namely B.C.Kodandaram and Sri.B.C.Lokabhiram seemed to dissatisfied with the disposition of the property by their late father Sri.B.V.Chittybabu under his Will dated 29101993. The two 8 sons of Sri.B.V.Chittybabu including defendant did not in the least help their father and mother financially or otherwise in the matter of the acquisition or the construction of the schedule property. They were also not taking care of their interest of late B.V.Chittybabu having realize the fact that his two sons will not stand by him in his old age seems to have disinherited in his registered Will dated 29101993.
During the life time of Sri.B.V.Chittybabu had instituted a eviction proceedings in HRC No.1049/1996 against a tenant in occupation of the ground floor of the main building H2 i.e., 'B' schedule and during the pendency of the case, Sri.B.V.Chittybabu passed away on 2072000. After his death, his wife Smt.Anasuya Chittybabu and her sons Sri.B.C.Kodandaram and B.C.Lokabhiram were brought on record as the legal representatives of late B.V.Chittybabu. However, both B.C.Kodandaram and B.C.Lokabhiram did not have any right, title or interest in respect of any portions of the main building described as 'B' schedule and marked as H 2 in the sketch annexed with the Will. In view of the fact that 9 the registered Will dated 29101993 had came into operation thereby, totally excluding any inheritance of the plaint schedule property by the defendant and his brother Sri.B.C.Kodandaram, besides Smt.Anasuya Chittybabu who was old and keeping indifferent health due to Rheumatoid Arthritis was finding it difficult to attend the hearing of the eviction proceedings. The defendant who was observing the eviction proceedings closely came forward to help his mother Smt.Anasuya Chittybabu pretending that he would stand by his mother in the proper conduct of the case.
Due to old age and physical ailments such as Rheumtoid Arthritis,, she may not be in a position to actively engage herself in the proper conduct of the case and executed a document in the nature of GPA empowering the defendant the authority to proceed with the eviction case against the tenant. Smt.Anasuya Chittybabu did not doubt the bonafides of the defendant and agreed to execute a GPA in favour of the defendant. The defendant by fraudulent misrepresentation and with a malafide intention to deprive Smt.Anasuya 10 Chittybabu and himself of their absolute right in respect of the schedule property seems to have obtained a document from Smt.Anasuya Chittybabu, purported to be a Gift Deed. Eviction proceedings in HRC No.10049/1996 against the tenant Sri.D.H.Sachdev came to be dismissed. Therefore, she preferred an HRRP No.45/1997 on the file of the Hon'ble High Court of Karnataka, Bengaluru and obtained an order of stay.
Defendant by his fraudulent misrepresentation with a malafide intention had obtained a registered Gift Deed, dated 29112001 in respect of the ground floor portion of the B schedule property from his mother Smt.Anasuya Chittybabu. The defendant made his mother Smt.Anasuya Chittybabu to believe that a registered Gift Deed is required in his favour with a view to conduct the eviction proceedings and use the same in an opportune moment to the disadvantage of the plaintiff.
Ultimately, the eviction proceedings filed against the tenant in respect of the ground floor portion of the 'B' 11 schedule property came to be allowed by an Order dated 05072004, by the Chief Judge, Small Causes Court, Bengaluru in HRC No.525/1996.
The defendant B.C.Lokabhiram in collusion with his elder brother Sri.B.C.Kodandaram hatched a plan to deprive him and his grandmother - Smt.Anasuya Chittybabu of their right to enjoy the schedule property and carve out a share in the schedule property obtained a fraudulent misrepresentation and taking advantage of his relationship with his mother standing in a fiduciary relationship. Towards this, illegal intention the defendant managed to obtain a document in the nature of a registered Gift Deed from Smt.Anasuya Chittybabu in respect of the ground floor of the 'B' schedule property - H2 under registered document dated 29112001.
As on the date of the execution of the Gift Deed, Smt.Anasuya Chittybabu was aged about 76 years and not worldly wise to understand the diabolic intentions of the defendant in getting a document from her. The document 12 executed by her in respect of the ground floor of the main building described as H2 in the annexed sketch did not have any transferable/absolute right in conveying the property in favour of the defendant as in the registered Last Will and Testament of late B.V.Chittybabu, there was a specific prohibition against Smt.Anasuya Chittybabu from alienating any portion of the property described in the B schedule H2 as she had only a life estate which was a limited estate.
As on the day when the registered Gift Deed came to be executed by his grandmother on 29112001 was a student studying for his Engineering and he did not know about the illegal transactions which had taken place between his grandmother and the defendant in the form of a registered Gift Deed dated 29112001. The defendant for the first time came to know about the execution of the Git Deed on 3112 2009, when the tenant B.S.Sachdev vacated the ground floor of the 'B' schedule property and the defendant occupying the ground floor of the schedule premises in a surreptitious manner on 112010. Immediately thereafter, he started 13 making enquiries with his grandmother and was shocked to note that the defendant had obtained a document n the nature of Gift Deed dated 29112001 n respect of ground floor portion of the 'B' schedule property by fraudulent misrepresentation to his mother and such a document is needed for the eviction proceedings. Under these circumstances, the document dated 29112001 have been executed by his grandmother is primafacie illegal and null and void and therefore, does not exists in the eye of law.
He has also obtained a certified copy of the alleged Gift Deed and made enquiry which clearly reveals that Smt.Anasuya Chittybabu had suffered a positive fraud played by the defendant by undue influence and misrepresentation. The plaintiff has produced a true copy of the Gift deed dated 29112001 purported to have been executed by Smt.Anasuya Chittybabu in favour of the defendant. There is absolutely no mention of the source of title of Smt.Anasuya Chittybabu in the Gift Deed purported to have been executed on 29112001 in favour of the defendant as Smt.Anasuya Chittybabu did 14 not derive any right, title or interest to convey the property to the defendant. The true copy of the eviction decree passed in HRC No.525/1996 on the file of Small Causes, Bengaluru City is also produced.
Smt.Anasuya Chittybabu who is the grand mother of the plaintiff was taking care of the plaintiff when his mother Smt.Premalatha Balaram passed away as the plaintiff had become an Orphan. With the passage of time, the plaintiff started taking care of the interest of Smt.Anasuya Chittybabu who was also extremely displeased with her two sons on account of their noncooperation and continued neglect of her interest. Smt.Anasuya Chittybabu who was standing in a fiduciary relationship with her grandson the plaintiff herein was also standing inlocoparenties had a lot of anxiety about the future of the plaintiff in the event of her demise. In view of the same, Smt.Anasuya Chittybabu executed a registered Gift Deed in favour of the plaintiff in respect of 'B' schedule property over which she had the absolute power of disposal in terms of the registered Will dated 29101993 executed by 15 late B.V.Chittybabu. Smt.Anasuya Chittybabu passed away on 20082011. Under these circumstances, the plaintiff has become the absolute owner of A & B schedule properties described as H1 and H2 in the annexed sketch in terms of the Will dated 29101993.
The defendant does not get any right, title and interest in respect of the ground floor portion of the B schedule property of the main building described as H2 as the defendant had suppressed the registered Will dated 2910 1993 of his father in obtaining the registered Gift Deed dated 29112001 from late Smt.Anasuya Chittybabu. This is because with regard to the B schedule property, Smt.Anasuya Chittybabu had only a life estate. Being an old lady with indifferent health she has been mislead by a fraudulent misrepresentation by the defendant in getting the registered Gift Deed dated 29112001 in his favour. It is also pertinent to note that during the relevant point of time, there was no rule of affixing the photographs in the office of the Sub Registrar. In view of the same a lot of suspicion arises in the 16 matter of the executor of the Gift Deed dated 29112001 from Smt.Anasuya Chittybabu. The plaintiff has the right to question the Gift Deed dated 29112001 on the ground that it is illegal, null and void abinitio. Therefore, the plaintiff prays for a decree of the suit.
3. The defendant has appeared before the Court and filed the Written statement to oppose the suit, wherein, he has denied and disputed all the plaint averments. He has admitted that the plaintiff is the grand son of B.V.Chittibabu and Smt.Anasuya Chittibabu and he has also admitted that the plaintiff is the son of Premalatha Balaram, the sister of defendant. It is contended that the mother of the plaintiff married to one Mr.Balaram and their marriage was inter caste and she was his second wife. There was lot of difference of opinion among the father and mother of the plaintiff due to financial crisis and worst environment, the mother of the plaintiff parental home and the plaintiff was born in the grand parents house. The plaintiff was under the mercy of defendant and his brother B.C.Kodandaram and they looked 17 after from his childhood till he attained majority. All is education, food and clothing etc., were met out by the defendant. The plaintiff resided with the parents of the defendant through out and they resided in the schedule 'B' property, wherein the defendant is residing. One Mr.D.S.Sachdev who has got the Rent Control allotment during the time evicted the parents of the defendants and during the said period, he parents of the defendant was taken to the rented house of the defendant along with the plaintiff to Indiranagar and it is the defendant who stood by his parents in all their difficult times and looked after their parents till their last breath including the plaintiff, his education, food and clothing etc., and now the plaintiff who gone up have grown up have approached this Court with false case putting all the aspersions of the defendant as if the defendant, who being the son of B.V.Chittibabu and Anasuya Chittibabu has played fraud in getting the registered Gift Deed in his favour. In fact, after the tenant in the ground floor of the outhouse, the defendant kept his parents and the plaintiff in the ground 18 floor and they were residing till their last breath of the outhouse property of the suit schedule 'A' property. The plaintiff has not done anything either to the parents of the defendant or to the defendant except claiming all the four houses as his and challenged the execution of the Gift Deed by mother of the defendant in favour of defendant. The entire property is consisting of outhouse and main house. The outhouse consisting of ground floor and first floor and main house consisting of ground floor nd the first floor described in the plaint 'A' schedule property with a common passage. The defendant is residing in the ground floor. For the first time, the defendant who came to know the plaintiff has fraudulently got the Gift Deed dated 15122005 from the mother of the defendant to the outhouse property consisting of ground floor and first floor only after the defendant received the suit summons and case papers from the Court and falsely claiming all the four houses, as if the same is given to him and now falsely claiming the Gift Deed executed by the mother of the defendant to the defendants is null and void 19 and for cancellation of the same and for possession of the schedule 'B' property. Thus, the plaintiff is falsely claiming ownership over all the four houses i.e., as described in the schedule of the property as 'A' schedule property by wrongly interpreting the Will executed by late B.V.Chittibabu to his convenience.
He further contended that the ground floor in the outhouse has been constructed in the year 1967 and first floor was constructed somewhere in the year 197677 and the main house were constructed in the year 1986 by raising the loan from Bengaluru City Cooperative Bank on the surety of the defendant and he cleared the loan on two occasions. Mr.Chittibabu Naidu was retired from the service of BEML in the year 197677 and thereafter, he did not have any income and he joined the service in the year 1976 and apart from clearing the loans raised by late B.V.Chittibabu, it is the defendant who has contributed his monetary for the construction of the houses in the first floor and to the main houses of the schedule A property and hence, the averments 20 made by the plaintiff that Chittibabu alone has constructed the houses on his own are all misleading and misrepresentation. After the retirement of Chittibabu from the service, it is the defendant who looked after his father and mother till their last breath.
By further denying all the plaint averments, he has categorically contended that the mother of the defendant out of her own volition has executed the Gift Deed in challenge and thereby, seeks to dismiss the suit.
4. Based on the pleadings of the parties, following issues and additional issues have been framed:
1. Whether the plaintiff proves the registered Gift Deed dated 29112001 stated to have been executed by Smt.B.Anasuya Chittybabu in favour of the defendant being Abinitio null and void is liable to be cancelled?
2. Whether the plaintiff proves that Sri.B.V.Chittybabu in his last Will and testament dated 29101993 bequeathed the front portion of the building described as 29101993 bequeathed the front portion of the building described as H is in the 21 sketch annexed to the Will in favour of his wife Smt.Anasuya creating a life estate?
3. Whether the plaintiff further proves that as per the said Will, Smt.Anasuya is dissatisfied with the behaviour of the plaintiff, she could alienate the property and from out of the sale proceeds, she must deposit sum of Rs.1,25,000/ in the name of the plaintiff for his future life?
4. Whether the plaintiff is entitled to recover the possession of the portion of the 'B' schedule property i.e., the ground floor marked as H2 in the annexed sketch from the defendant?
5. Is it just and necessary to hold an enquiry into mesne profits U/o.XX Rule 12 of CPC as prayed against the defendant?
6. What Order or Decree?
Additional Issues framed on 01062015
1. Whether the plaintiff proves that the valuation suit property is proper and Court fee paid thereon is sufficient?
2. Whether the defendant proves that the suit of the plaintiff is hopelessly barred by limitation?
22
Additional Issue framed on 15122018
3. Whether suit is bad for nonjoinder of necessary party?
5. To establish the plaint averments, the plaintiff himself is examined as P.W.1 and he examined Smt.Kanthamma Murugesan as P.W.2 and Smt.Mamatha.M. as P.W.3 and Sri.Ramprasad as P.W.4 and got marked Exs.P.1 to P.11 documents. Ex.P.1 is the original Will dated 29101993. Ex.P.2 is the katha certificate. Ex.P.3 Katha extract. Ex.P.4 is the reply letter. Ex.P.5 is the certified copy of the Gift Deed dated 29112001. Ex.P.6 is the Certified copy of the Order passed in HRC No.525/1996 and Ex.P.7 is the Registered Gift Deed dated 15122005. Ex.P.8 is the Death Certificate of Jayaprakash Advocate. Ex.P.9 is the notarized identity card issued by Advocate association. Ex.P.10 is the notarized Aadhar card of Smt.Mamatha and Ex.P.11 is the ID proof of Jayaprakash.
6. From the defendant's side, the defendant himself is 23 examined as D.W.1. D.W.2 is one Mr.B.C.Kothandaram, the brother of defendant and D.W.3 Smt.B.Lakshmi Abhiram wife of defendant and from their side, the original Gift Deed, dated 2912001 is marked as Ex.D.1 and tax paid receipt is marked as Ex.D.2.
7. The Learned Counsel for plaintiff vehementally contended that the suit property was the self acquired property of Sri.B.V.Chittybabu and he executed a Will bequeathing the property in favour of his wife in respect of 'A' schedule property of the Will and 'B' schedule property in favour of wife by giving life interest and after the death of his wife i.e., Anasuya Chittibabu, the property should go to the plaintiff herein and the plaintiff has no absolute right over the suit property but a life interest has been created in favour of the plaintiff. After the death of plaintiff, the said property should go to his children born to the plaintiff and there was a condition in case if the wife of Sri.B.V.Chittybabu is not satisfied with the character of plaintiff, then she can alienate the property to any person and out of the sale proceeds, she 24 has to deposit Rs.1,25,000/ in the name of the plaintiff but no such circumstances were arose. The defendant by fraudulently got executed the Gift Deed dated 29112001 on he guise of obtaining the GPA in connection with HRC proceedings. Smt.Anasuya Chittibabu has no absolute right over the suit property to Gift the said property and thereby, seeks to decree the suit.
8. On the other hand, the Learned Counsel for the defendant has vehementally contended that Smt.Anasuya Chittibabu having absolute right over the suit property and according to her own volition has executed the Gift Deed out of natural love and affection since the defendant looked after his parents at their advanced age and it also contended that the plaintiff is one of he witness to the said Gift Deed and he has categorically contended that the plaintiff was not having any good character and he had bad antecedent. Hence, dis satisfied with his antecedents Smt.Anasuya Chittibabu has executed Gift Deed and he cannot challenge the same since she was having the right over the suit property and thereby, 25 she seeks to dismiss the suit.
9. Heard and perused the records.
10. My findings to the above issues are as follows: Issue No.1 : In the affirmative Issue No.2 : In the affirmative Issue No.3 : In the affirmative Issue No.4 : In the affirmative Issue No.5 : In the affirmative Issue No.6 : As per final order Addl.Issue No.1 : In the affirmative Addl.Issue No.2 : In the affirmative Addl.issue No.3 : In the negative REASONS
11. Issue Nos.1 to 4: All these four issues have taken together for common discussion since they are interlinked to each other.
The plaintiff is before the Court for the relief of declaration declaring that the Registered Gift Deed dated 26 29112001 executed by Smt.Anasuya Chittibabu in favour of defendant is void and abinitio and null and void and cancellation of the said Gift Deed and for possession of 'B' schedule property and for mesne profits and such other reliefs. These reliefs have been sought by the plaintiff on the ground that one B.V.Chittibabu was the absolute owner of the suit 'A' & 'B' schedule property and he acquired during his life time out of his own earning and he has executed the Registered Will dated 29101993, wherein, suit 'A' schedule property was bequeathed in favour of Smt.Anasuya Chittibabu creating life interest. Thereafter, the said property should go to the plaintiff and for the plaintiff also life interest was created and after the death of plaintiff, the property should go to the children of plaintiff and 'B' schedule of the Will is absolutely bequeathed in favour of Smt.Anasuya Chittibabu and it is further contended that by the plaintiff that the defendant is the son of Smt.Anasuya Chittibabu on the guise of executing General Power of Attorney in connection with HRC proceedings has obtained the disputed 27 Will and hence, by contending that Smt.Anasuya Chittibabu has no absolute right to execute the disputed Gift Deed. Hence, he seeks for the above said reliefs.
12. On the other hand, the defendant has categorically contended that Smt.Anasuya Chittibabu having absolute right has executed Gift Deed in his favour and in the said Will, there was a recital that if the Anasuya Chittibabu is not satisfied with the character of the plaintiff, then she is at liberty to alienate or execute any sort of document according to her own wish. Hence, he seeks to dismiss the suit.
13. The relationship between the parties is not disputed. It is also not disputed that suit property was originally belonged to B.V.Chittibabu. But, the plaintiff has contended that his mother Smt.Premalatha Balaram has also contributed for the construction of the property. But, except his oral testimony, there is no other document in this regard. On the other hand, the defendant has also contended that he has also contributed for construction and repayment of loan. 28 But, there is also any documentary evidence except the oral testimony of the defendant. As already notice, the relationship between the parties is not disputed. Originally, Chittibabu and Anasuya Chittibabu had three children by name B.C.Kothandaram, B.C.Lokabhiram ie., defendant and Smt.Premalatha Balaram, who is the mother of the plaintiff herein. Chittibabu died on 20072000 and Smt.Anasuya Chittibabu died on 20082011.
14. Now, the dispute is with respect to suit property wherein, the plaintiff is claiming the suit property on the basis of the Registered Will dated 29101993 executed by Chittibabu. On the other hand, the defendant is claiming right over the suit property on the basis of the Gift Deed, dated 29112001. In view of this, both the parties have to establish the validity of the documents.
15. Now, let me consider the Will which is produced at Ex.P.1, dated 29101993.
As already noticed, the plaintiff is claiming the suit 29 property by contending that life interest has been created in his favour by virtue of the said Will. On perusal of Ex.P.1, it is clearly reflected that the suit property is the self acquired property of B.V.Chittibabu S/o.B.R.Venkatesh. In the recitals of the Will, he has clearly mentioned that Smt.Anasuya Chittybabu is his wife and out of his wedlock i.e., Smt.Premalatha Balaram, Kodandaram and Lokabhiram are born. He has categorically mentioned in the aid Will that Smt.Premalatha Balaram who is the mother of the plaintiff died on 591985 and the plaintiff was in their care and custody. He has also mentioned that he has acquired the suit property from BDA in the year 1966 out of his own earnings. He has constructed the building in the said property and he has mentioned in clear words that he is executing the Will when he is in sound state of mind and out of his free mind and volition and without any undue influence. He has made two schedules of the Will i.e., 'A' schedule and 'B' schedule is indicated as H1 and 'B' schedule is indicated as H2. Now, the dispute is with regard to H2 i.e., 'B' schedule property. 30 For the sake of convenience, certain recitals of the Will is extracted which reads as under:
8. That I also hereby bequeath the main house in the said property indicated as 'HII' in the annexed sketch and morefully described in the Schedule 'B' hereunder to my wife Smt.B.Anasuya Chittybabu who shall enjoy the same during her lifetime by receiving the rents and profits arising out of he said main house indicated as 'HII' in the annexed sketch.
9. After the death of my wife, the Main House property indicated as 'HII' in the annexed sketch and morefully described as 'B' schedule hereunder shall pass on to my Grandson Master B.Krupakar born to my daughter Smt.V.Premalatha who shall also enjoy the aid 'B' schedule property during his life time by receiving rents and profits arising out of the said 'B' schedule property. My Grandson Master B.Krupakar shall also not have any power of alienation of the said 'B' schedule property. After the death of my Grandson B.Krupakar, the said 'B' schedule property shall pass on to his children (i.e. children of Master B.Krupakar) equally. I am bequeathing the 'B' schedule property to my Grandson B.Krupakar subject to the condition that he shall look after my wife Smt.B.ANASUYA CHITTY BABU giving her all needs and welfare etc., and in case if my wife is not satisfied about the behaviour of my Grandson B.KRUPAKAR towards my wife 31 Smt.B.ANASUYA CHITTY BABU, she is at liberty to alienate the 'B' schedule property to any person or persons at her own discretion and out of the sale proceeds, she has to deposit a sum of Rs.1,25,000/ (Rupees One Lakh twenty five thousand only) in the name of my Grandson B.KRUPAKAR.
16. From plain reading of the above said recitals, it is clear that the intention of Chittybabu is to bequeath the property in favour of plaintiff by creating life interest to his wife and also plaintiff. Thereafter, the property should go to the children of the plaintiff.
17. In order to prove the contents of the Will, the original Will is produced and to comply the Provisions of Section 68 & 69 of Evidence Act to prove the Will. P.W.3 and P.W.4 have been examined.
18. P.W.3 is none other than the wife of Advocate Jayaprakash who drafted Ex.P.1. The said Advocate Mr.Jayaprakash is died on 5102011. The death certificate of Jayaprakash is produced at Ex.P.8 and his wife 32 Smt.Mamatha has identified the signature of her husband over Ex.P.1.
19. P.W.4 - Mr.Ramprasad is examined to identify the signature of one of the attester Mr.Gopalakrishna. In his evidence, P.W.4 has categorically stated that his father is died during 2009 and he is able to identify his father's signature. So, by examining P.Ws 3 and 4, the plaintiff has proved the very execution of Ex.P.1 - Will. Even otherwise, Ex.P.1 is not at all disputed by the defendant. He never stated that Ex.P.1 is not executed by his father. In these circumstances, we have to come to the definite conclusion that Ex.P.1 is proved in accordance with law. 'H2' property recited as 'B' schedule in Ex.P.1 is bequeathed in favour of plaintiff by creating life interest to him and also to Smt.Anasuya Chittibabu. But, she was not given any absolute right to execute any kind of Conveyance Deed and there is a condition in the said Will if at all Anasuya Chittibabu is not satisfied about the behaviour of the plaintiff, then, she can alienate 'B' schedule property to any person or persons of her own discretion and out of the 33 sale proceeds, she has to deposit of Rs.1,25,000/ (Rupees One Lakh Twenty Five Thousand). This is the precondition for alienation of the 'B' schedule property of the Will. In the back drop of this condition, we have to examine the Gift Deed executed in favour of defendant. Defendant during the course of the trial has produced original Gift Deed at Ex.D.1. On perusal of Ex.D.1, no where it is mentioned that Smt.Anasuya Chittibabu is dissatisfied with the behaviour of the plaintiff and nowhere, it is mentioned that she is depositing Rs.1,25,000/(Rupees One Lakh Twenty Five Thousand) in the name of the plaintiff by gifting the property and it is only mentioned that out of love and affection, the property is being gifted. In my humble opinion, after perusal of entire documents, this is in clear violation of conditions of Ex.P.1.
20. If at all, Sri.B.V.Chittibabu was intended to bequeath property in favour of his children definitely, he should have mentioned the very same aspects in his Will also. But, he never whispered a single word regarding giving property to his children except to his wife and the plaintiff. It 34 means, he was not intended to give the property to his children. Because, in 'A' schedule property of Ex.P.1 was absolutely bequeathed in favour of his wife. If at all, Sri.B.V.Chittibabu was intended to give the property then certainly he should have created life interest in 'A' schedule property. Then, after the death of Smt.Anasuya Chittibabu, it should go to his children but there is no such recital in Ex.P.1. The defendant though has produced the Gift Deed he has not proved the Ex.P.1 in accordance with the Law. Because, as per Section 123 of T.P.Act., the document pre supposes attestation of at least two witnesses. None of the attesting witnesses of Ex.D.1 is examined before the Court. Of course, though it is not mandatory to examine any of the witnesses to Ex.D.1, but when there is a clear allegation of fraud, misrepresentation by the plaintiff in execution of Ex.D.1, then, as per Section 16 of Indian Contract Act which reads as under:
16. Undue influence defined. (1) A contract is said to be induced by "undue influence" where the relations subsisting between the parties are such that one of the 35 parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.
(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another
(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or
(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other.
Nothing in this subsection shall affect the provisions of section 111 of the Indian Evidence Act, 1872 (1 of 1872).
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21. The burden is always upon the defendant to disprove the said aspect by examining the witness. Here, the defendant has not taken any such risk to examine attesting witnesses of Ex.D.1. Though, it is contended that the plaintiff is also one of the signatory to Ex.D.1, but it is seen that only his name is mentioned, on comparison of his signature over the plaint and Ex.D.1, it appears that only address and name of the plaintiff is mentioned. Even other wise, even if he is a witness then, Smt.Anasuya Chittibabu was not having any absolute right to execute the Gift Deed. He is not a consenting witness to give consent because there was no existing interest of the plaintiff to give consent. Under these circumstances, I am of the opinion that the Gift Deed is not proved in accordance with the Law and he same does not convey any right in favour of defendant since the said Gift Deed is executed by Smt.Anasuya Chittibabu have no right in the suit property. Hence, issue Nos.1 to 4 are answered in the affirmative.
22. Issue No.5: Admittedly, the property is leased to 37 tenants earlier. Later on, after eviction, the defendant is in possession of the suit property. When he is not having any right over the suit property definitely he should liable for mesne profits. But in the absence of material and evidence, there should be separate enquiry for mesne profits. Accordingly, issue No.5 is answered in the affirmative.
23. Additional issue No.1: The suit is for cancellation of Gift Deed - Ex.D.1 dated 29112001 and for possession of property. Though, the defendant has taken the contention that the suit is not properly valued but on perusal of the valuation slip, the plaintiff by valuing the suit property in square feet at Rs.3,000/ has paid Rs.1,35,339/ but the defendant has not placed any material before the Court to say that the said valuation is not correct. Hence, Addl.issue No.1 is answered in the affirmative.
24. Additional issue No.2: The present suit is filed for the relief of declaration and also possession. The suit for possession has to be filed within 12 years from the date of 38 cause of action. In this case, even if we calculated the date of cause of action as on the date of execution of the Gift Deed, dated 29112001, the suit is filed in the year 2012 is within the limitation. Hence, Additional issue No.2 is answered in the affirmative.
25. Additional issue No.3: Admittedly, the dispute is between the plaintiff and defendant in respect of Gift Deed. There is no any interest to other parties in the suit property except to the plaintiff and defendant. Hence, there is no question of joinder of necessary parties. Accordingly, Addl.issue No.3 is answered in the negative.
26. Issue No.6: In view of findings on issue Nos.1 to 6 and Additional issue Nos.1 to 3, I proceed to pass the following: ORDER Suit of the plaintiff is decreed with cost.
It is hereby declared that the Gift Deed
dated 29112001 executed by
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Smt.Anasuya Chittybabu in favour of
defendant is null and void. Consequently, the Gift Deed dated 29112001 is hereby cancelled, by exercising the powers under Section 31 (2) of Specific Relief Act. Office is directed to send Certified Copy of the Decree to the Concerned SubRegistrar to make necessary entry in the concerned Register regarding the cancellation of the Gift Deed dated 29112001.
The defendant is directed to quit, vacate and hand over vacant possession of suit 'B' schedule property namely the ground floor marked as H2 in the annexed sketch to the Will dated 29101993 to the plaintiff within 90 days from the date of this Judgment.
If the defendant fails to hand over the 40 vacant possession, then, the plaintiff is at liberty to take the possession by enforcing this Judgment and Decree.
There should be separate enquiry for mesne profits.
Draw Decree accordingly.
(Dictated to the JudgmentWriter, transcribed and typed by her and then corrected and pronounced by me in the open court on this the 28th day of February 2022) (SATHISHA.L.P) C/c XXXV Addl.City Civil & Sessions Judge, Bengaluru ANNEXURE Witnesses examined on behalf of the plaintiff.
P.W.1 : Sri.Krupakar
P.W.2 : Smt.Kanthamma Murugesan
P.W.3 : Smt.Mamatha.M.
P.W.4 : Sri.Ramaprasad
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Witnesses examined on behalf of the defendants.
D.W.1 : Sri.B.C.Lokabiram
D.W.2 : Sri.Kothandaram
D.W.3 : Sri.B.Lakshmi Abhiram
Documents marked on behalf of the plaintiff.
Ex.P.1 : Original Will dated 29101993
Ex.P.2 : Katha Certificate
Ex.P.3 : Katha Extract.
Ex.P.4 : Uttara Patra
Ex.P.5 : Certified copy of the Gift Deed
dated 29112001
Ex.P.6 : Certified copy of the Order passed in
HRC No.525/1996
Ex.P.7 : The Registered Gift Deed
dated 15122005
Ex.P.8 : Death Certificate of Jayaprakash
Advocate
Ex.P.9 : Notarized identity card issued by
Advocate Association.
Ex.P.10 : Notarized Aadhar card of Smt.Mamatha
Ex.P.11 : ID proof of Jayaprakash.
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Documents marked on behalf of the defendant.
Ex.D.1 : Original Gift Deed dated 29112001
Ex.D.1(a) : Signature
Ex.D.1(b) : Thumb impression
Ex.D.2 : Tax paid receipt
(SATHISHA.L.P)
C/c XXXV Addl.City Civil &
Sessions Judge, Bengaluru
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