Karnataka High Court
Dr(Mrs.) M S Bhavani vs M S Raghu Nandan on 1 October, 2012
Author: A.S.Bopanna
Bench: A S Bopanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 1ST DAY OF OCTOBER 2012
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
R.F.A. NO.1888/2011
c/w
R.F.A.No.1889/2011
Between :
1. Dr. (Mrs.) M.S. Bhavani
W/o D Suresh Babu
Aged about 52 years
2. D. Sursh Babu
S/o Dasappa
Aged about 52 years
Both are r/of No.74
Dorchestor Avenue
Warwick, Perth City
West Australia-6024 ... Appellants
(Common)
(By Sri S.N. Aswathanarayan, Adv.)
And :
1. M.S. Raghu Nandan
S/o late M. Srinivasa Murthy
Aged about 49 years
R/at No.19, Railway Layout
Nandini Layout, 4th Block
Rama Krishana Nagar
Bangalore.
2. Smt. Nirmala Murthy
W/o late M. Srinivasa Murthy
Aged about 74 years
R/at No.377, 5th Main
3rd Block, 3rd Stage
2
Basaveshwaranagar
Bangaluru-560 079. .. Respondents
(Common)
(By Sri D.R. Sundaresh, Adv. for R1
Sri B.K. Sampath Kumar, Adv. for R2)
This R.F.A.No.1888/2011 is filed under Order 41 Rule
1 read with Section 96 of CPC, against the judgment and
decree dated 09.09.2011, passed in O.S.No.6341/2006 on
the file of the III Addl. City Civil and Sessions Judge,
Bangalore, partly decreeing the suit for declaration and
permanent injunction.
This R.F.A.No.1889/2011 is filed under Order 41 Rule
1 read with Section 96 of CPC, against the judgment and
decree dated 09.09.2011, passed in O.S.No.1845/2008 on
the file of the III Addl. City Civil and Sessions Judge,
Bangalore, dismissing the suit for ejectment.
These appeals having been reserved for judgment,
coming on for pronouncement this day, the Court
pronounced the following :
JUDGMENT
The defendants No.2 and 3 in O.S.No.6341/2006, who are the plaintiffs in O.S.No.1845/2008 are before this Court in these two appeals claiming to be aggrieved by the common judgement and decree dated 09.09.2011 passed in the said suits. The appeal in RFA No.1888/2011 is against the judgment in O.S.No 6341/2006 while RFA No.1889/2011 is against the judgement in O.S.No.1845/2008.
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2. The suit in O.S.No.6341/2006 is filed by Sri.M.S.Raghunandan against his mother Smt.Nirmala Murthy, sister Dr. (Smt). M.S.Bhavani and brother-in- law Sri.D.C.Suresh Babu seeking declaration that his mother and sister are disentitled to execute any sale deed in favour of the brother-in-law and for the other reliefs. The sister Dr (Smt) M.S.Bhavani and son-in-law Sri.D.Suresh Babu have filed the suit in O.S.No.1845/2008 for ejectment against the mother Smt.Nirmala Murthy terming her as a licensee. The suit in O.S.No.6341/2006 filed by Sri.M.S.Raghunandan (son) for declaration has been decreed in part, while the suit in O.S.No.1845/2008 filed by Dr (Smt) M.S.Bhavani (daughter) and Sri Suresh Babu (son-in-law) has been dismissed. The daughter and son-in-law who have been unsuccessful in both the suits have filed these two appeals.
3. The parties would be referred to by their names for the purpose of convenience and clarity as they have been arrayed differently in the two suits. The result of the suit for declaration would have a bearing 4 on the suit for ejectment, as such the facts are noticed in that order.
4. The suit in O.S.No.6341/2006 is filed by Sri.M.S.Raghunandan (son) stating that the suit schedule property is the self acquired property of his father Late M.Srinivasa Murthy, he having purchased the site from Bangalore Development Authority in the year 1974. Thereafter, he borrowed loan from a Co- operative Society and constructed a residential house. The parents lived in the house and it was his intention that his only son would succeed to the property. The said intention was stated in the registered WILL dated 07.06.1995. He also executed the WILL dated 18.05.1995 which was notarized. The WILL dated 07.06.1995 is a holograph WILL wherein he has made his intentions clear and he has mentioned about his wife, son, daughter, the son-in-law and their son. The contents of the WILL is referred to the effect that he celebrated the marriage of his daughter in the year 1983 but unfortunately ended in dissolution and about the son Sameera born out of that marriage. Sri. 5 Raghunandan being employed in BHEL has been stated. It is averred that the father had expressed aspersions against his son-in-law and there was dislike and hatredness. It is also averred that the father had disbelieved the son-in-law and daughter.
5. The intention of the father as expressed is that the mother shall be the sole legal heir of the property and she will have every right and authority to sell the property to any other third person other than her own children or mortgage or lease the house or totally to bequeath it to anybody who takes care of her in her last days. It is contended that such situation has not arisen, as she is being taken care of by Sri.Raghunandan. The daughter Dr.Bhavani and her husband are staying in Australia so they are not taking care. The decision has been left to Smt.Nirmala Murthy and none has the right to question her and make unjust claims.
Sri.Raghunandan also avers that the WILL provides for sale of the house and the manner in which the amount is to be divided between the son and daughter. In that regard, it is provided that out of the sale proceeds a 6 sum of Rs. 2,00,000/- for Sri Raghunandan and Rs.50,000/- for grandson Sameera is to be set apart and the remaining sale proceeds to be divided equally between Sri.Raghunandan and Dr.M.S.Bhavani. It is contended that the property was to be sold with the co- operation of the children and not to sell it to them.
6. It is further averred in the plaint that he was taking care of his mother. The mother being a conservative person in any case was unable to adjust with the daughter's husband as he was a non-Brahmin and a non-vegetarian. When that was the position, the daughter started visiting the mother and started giving threats and the son-in-law also brought unscrupulous persons creating a situation where the mother was threatened. Her health also started getting effected and the daughter started administering medicines which were detrimental. Such motive is attributed to his sister for getting the earlier WILL being executed by the father. The further averment is that without the knowledge of Sri Raghunandan, the fraudulent sale deed was prepared and got executed in favour Dr.M.S.Bhavani 7 and Sri.D.C.Suresh Babu. Such sale deed is contrary to the WILL of the father. It is alleged that the mother was taken to the Sub-Registrar's office in a state of drowsiness and she was unable to comprehend where she was but she was taken by the daughter and son-in-law to the Sub-Registrar's Office at 5.00 p.m. when it was to close and it was represented to her that some photographs are to be taken for passport and VISA to enable her to travel abroad with them. The mother was also unaware of any procedures regarding sale deeds also. The Officer who was present in Sub- Registrar's Office did not read over the document nor told her about the transaction. She was also not able to read the document in Kannada. Sri Raghunandan came to know of the same only when he applied for encumbrance certificate to pay the taxes. It is only at that stage he came to know that it does not stand in the name of the father. He thereafter applied for certified copies and learnt about the registration. It is averred that in such circumstances, the allegation is made against the mother as she has also acted contrary to the 8 WILL. Even if there was a sale, it was for a lesser value than what prevailed in 2005. The valuation got done by the son-in-law is also to suit the convenience. Sri Raghunandan therefore contends that the sale deed does not bind him and fraud has been played on him and he is entitled to get the entire property. He has therefore instituted the suit.
7. The Defendants on being served with the suit summons, appeared and filed their written statement. The first defendant Smt.Nirmala Murthy filed her independent statement while the defendants No.2 and 3 Dr.M.S.Bhavani and Sri D.C.Suresh Babu filed their joint written statement. Smt.Nirmala Murthy in her written statement has admitted the relationship between the parties and the property being the self acquired property of her husband late Sri M.Srinivasa Murthy and the manner in which it was acquired and the construction was put up. The fact that her daughter Dr. Bhavani was practicing medicine privately and that her son Sri Raghunandan is employed in BHEL has also been stated. It is further averred that 9 Dr.M.S.Bhavani got married to one Sri Pandurangi and has begotten a son named Sameera. However, she divorced Sri Pandurangi and thereafter married Sri D.C.Suresh Babu in 1994 and all the marriage expenses were borne by late Srinivasa Murthy. The plaintiff Ranghunandan also got married in 1994 and has a son and he is residing separately with his family. Hence, she and her husband late Srinivasa Murthy were residing in the property in question. It is averred that her late husband executed a WILL dated 18.05.1995 which was attested before a notary. However, he subsequently made his last WILL dated 07.06.1995 in his own handwriting and registered the same in the office of the Sub-Registrar, Rajajinagar, Bangalore. Under the said WILL, he has left the discretion with regard to the property to the first defendant Smt.Nirmala Murthy to dispose of the property for valuable sale consideration and to distribute the same among his daughter and son. It is her case that as per the intention expressed, out of the sale proceeds, a sum of Rs.2,00,000/- is to be paid to the son Sri 10 Raghunandan and Rs.50,000/- to the grandson Sameera, jointly with Dr.M.S.Bhavani. It is further provided in the WILL that if Smt.Nirmala Murthy does not choose to sell the property during her life time, then the daughter Dr.M.S.Bhavani with the consent of his Son Raghunandan should sell the property and pay Rs.2,00,000/- more to Sri Raghunandan and Rs.50,000/- to Sameera. Late Srinivasa Murthy died on 21.03.2002 and the first defendant Smt.Nirmala Murthy developed depression and was also a diabetic patient. The second defendant Dr.Bhavani who was residing nearby was visiting her and giving medicines.
8. It is further averred that during this period Dr.Bhavani managed to obtain signatures of Smt.Nirmala Murthy on some blank papers and in certain places she has also forged her signature. The grandson Sameera was also being sent by Dr.M.S.Bhavani during nights to stay with the first defendant. During the first week of February Dr.M.S.Bhavani and Sri Suresh Babu suggested to the first defendant to go on South India tour for 15 days. 11 Accordingly, she went along with grandson Sameera and during that period Dr.Bhavani taking advantage of her absence had taken away the original documents from the house of the first defendant. On the 23rd of February the first defendant returned in the morning at 7.30 a.m. during which time Dr.M.S.Bhavani came to her house and started quarreling for going to her own house without going to the daughter's house and compelled the first defendant to go to the daughter's house and she was immediately taken without allowing her even to change her dress. The first defendant avers that she had fever and was tired. When she went to her daughter's house, there were several other persons and on her daughter giving her some medicines, she felt drowsy and was not able to understand anything. At that point, they told the first defendant that she would be taken abroad for tour and therefore, her visa was required to be prepared and accordingly, she was made to sign several papers without even being allowed to read and understand the same. She also states that she was told the photographs were to be taken for the 12 same purpose. The first defendant further contends that on the next morning, Sri Suresh Babu met the first defendant and handed over cheque for Rs.20,00,000/-. The first defendant being surprised sought for clarification about the cheque. But, she was asked to keep it with her. On the next evening, Sri Suresh Babu came again and collected the cheque and destroyed the same immediately. When it was further enquired, she was told that she had availed loan from the Bank and for that purpose they obtained her signatures. It is alleged that they did not allow to contact any person including her son Sri Raghunandan. During October 2004 when Sri Raghunandan visited her, she burst into tears and disclosed the said fact to him. Thereafter her son informed her that Dr.Bhavani and Sri Suresh Babu have played fraud and obtained the sale deed in respect of the property. She therefore contends that they have taken undue advantage of her and have secured sale deed of the property worth more than Rs.70,00,000/- by showing the sale consideration as Rs.16,42,000/-.
Even that amount has not been paid. But, 13 subsequently they have managed to remit the sum of Rs.27,00,000/- to her account. The first defendant therefore prays that the suit be disposed of in accordance with law.
9. The second and third defendants viz., Dr.M.S.Bhavani and Sri Suresh Babu though have admitted that the property belonged to late Srinivasa Murthy and the property has thereafter vested with Smt.Nirmala Murthy consequent to the WILL executed in that behalf, would however dispute the other contentions. It is contended that the sale deed executed by Smt.Nirmala Murthy on 25.02.2004 is out of her own free will for valuable consideration. The said transaction is not vitiated by fraud or undue influence is their contention. The valuation of the suit and the payment of Court Fee thereof is also pointed out to contend that the same is insufficient. The defendants contend that when the plaintiff himself admits that the property was the absolute property of his father and the WILL executed by him is supreme, the sale made is as per the said desire and as such he has no locus standi 14 to question the same. Certain of the incoherent contentions put forth in the plaint are referred and on adverting to the contentions parawise, have denied the allegations more particularly to the manner in which the execution of the sale deed was described by contending that Smt.Nirmala Murthy was in a state of drowsiness and it has been misrepresented to her that her signatures and photographs were required for obtaining VISA and in that context, was taken to the Sub- Registrar's office and the sale deed was obtained clandestinely. The effect of the pleading is that Smt.Nirmala Murthy was literate and worldly wise so as to know about all implications.
10. The other allegations with regard to the property being transferred and that she had come to know of the same subsequently have also been denied. These defendants have contended that the value as stated by the plaintiff and the first defendant is not correct and the allegation that it was undervalued since Sri K.M.Manjunath and Sri Suresh Babu were friends is also false. The allegation made against the daughter 15 about giving medicines to the mother which made her drowsy have also been denied. The allegations made in the written statement of Smt.Nirmala Murthy is also adverted to and the allegation therein with regard to the cheque for Rs.20,00,000/- being handed over and the same being destroyed are also denied and the allegation that even the sum of Rs.16,42,000/- was not received as mentioned in the sale deed is also denied. These defendants have on the other hand contended that Smt.Nirmala Murthy pressurised them to purchase the property on the ground that if the property was sold to third person, it would go outside the family. In deference to her wishes these defendants purchased the suit house under a registered sale deed by making payment of Rs.16,42,000/- by cash before the Sub- Registrar.
11. It is further contended that Smt.Nirmala Murthy thereafter went on pressurising these defendants that the property was worth much more than the amount for which it had been sold under the registered sale deed and yielding to such pressure, 16 these defendants have made hefty payments only to buy peace. In that regard, it is contended that they borrowed a sum of Rs.14,00,000/- from ICICI Bank on 21.04.2004 and it was transferred to Smt.Nirmala Murthy's account. Again they borrowed a sum of Rs.7,21,214/- on the security of their another property from Visweswaraiah Cooperative Bank and paid to the first defendant through a pay order on 03.06.2004 which has been credited to her account. Apart from the same, Dr.M.S.Bhavani is stated to have issued a cheque for Rs.10,00,000/- in favour of Smt.Nirmala Murthy and she encashed the same by getting it credited to her account. These defendants therefore contend that including a sum of Rs.16,42,000/-, a total sum of Rs.47,62,214/- has been given to Smt.Nirmala Murthy. In spite of receiving the same, she has joined hands with Sri Raghunandan and engineered the instant suit. It is their case that after registration, they have taken possession and have shifted all their household articles to the suit house. But, as they were residing in Australia, they had permitted Smt.Nirmala Murthy to 17 occupy the house on a permissive basis. Hence they contend that the suit be dismissed.
12. In the above backdrop, Dr. M.S. Bhavani and Sri. D. Suresh Babu have filed the suit in O.S. No.1845/2008 against Smt. Nirmala Murthy seeking to eject her from the suit schedule property to which Sri. M.S.Raghunandan has been impleaded as second defendant. The case of the plaintiffs therein is that Smt. Nirmala Murthy has sold the property under registered sale deed dated 25.02.2004 and has put them in possession. However, since the plaintiffs were residing in Australia and since they were not keen on giving the premises on lease, permitted Smt. Nirmala Murthy to stay in the house as licensee and make use of the same. But, in the meanwhile, Sri M.S. Raghunandan has filed a frivolous suit in O.S.No.6341/2006 and in that suit, Smt. Nirmala Murthy has joined hands and has not reciprocated the noble gesture. Hence, the plaintiffs are not interested in continuing the licence and have therefore terminated the same by issuing legal notice dated 25.08.2007. She 18 was therefore asked to remove all her articles from the suit house. Since Smt. Nirmala Murthy has issued a reply denying the licence, the suit is filed praying that she be ejected from the premises.
13. The defendants Smt. Nirmala Murthy and Sri M.S. Raghunandan have entered appearance and filed their separate written statements. Smt. Nirmala Murthy has reiterated what had been stated in the written statement filed in O.S.No.6341/2006 as the first defendant therein to the effect that her daughter and son-in-law had played fraud and obtained the sale deed. She had therefore referred to the suit filed by her son Sri M.S.Raghunandan and contended that the very title of the plaintiffs is disputed. Hence, it is denied that she is a licensee and has sought for dismissal of the suit.
14. The second defendant Sri. M.S. Raghunandan has filed his separate written statement and reiterated his averments made in his suit filed in O.S. No.6341/2006 and is a replica of the written statement 19 filed by his mother-Smt.Nirmala Murthy. Hence, he has also sought for dismissal of the suit.
15. The Court below on taking note of the rival contentions has framed as many as five issues in O.S.No.6341/2006 which was recast subsequently and four issues in O.S.No.1845/2008 were framed which read as hereunder:
In O.S. No.6341/2006
1. Whether plaintiff proves that 1st defendant is not the absolute owner of the suit schedule property as per the Will and both plaintiff and 1st defendant are in joint possession of the suit schedule property?
2. If so, whether plaintiff proves that the sale deed executed by 1st defendant in favour of D2 and D3 is vitiated by fraud and not binding upon the plaintiff ?
3. Whether 2nd and 3rd defendants are interfering with the possession of plaintiff as he is in joint possession with 1st defendant in the schedule premises?20
4. Whether 1st defendant Smt. Nirmala Murthy proves that by playing fraud upon her, 2nd and 3rd defendants got executed the fraudulent sale deed in favour of them by mis-
representing that her signature is required for getting visa and pass-port and took her photograph?
5. To what decree or order?
In O.S. No.1845/2008
1. Whether the plaintiff prove that the defendant is residing in the suit schedule property under them as licensee?
2. Whether Court fee paid is sufficient?
3. Whether the plaintiffs are entitled for the relief as sought?
4. What order or decree?
16. Since both the suits were clubbed, the parties tendered common evidence and marked common documents. Sri Suresh Babu, the son-in-law of Smt. Nirmala Murthy was examined as PW-1, the witness Sri 21 V Natarajan and Dr.G.C. Sumathi Kumar were examined as PWs-2 and PW-3. The documents at Exhs.P-1 to P-27 were marked. Smt. Nirmala Murthy examined herself as DW-1 and Sri Raghunandan was examined as DW-2. The documents at Exhs.D-1 to D-77 were marked in support of their case. The Court below in the background of the same has decreed the suit in O.S.No.6341/2006 in part and dismissed the suit in O.S.No.1845/2008.
17. Sri S.N. Aswathanarayana, learned counsel for Dr.M.S.Bhavani and Sri Suresh Babu has argued elaborately to assail the judgment of the Court below, the gist of the contention is as hereunder. Though the father had executed an earlier WILL dated 18.05.1995, the subsequent WILL dated 07.06.1995 has been written in his own hand. The said WILL provides the absolute power to Smt. Nirmala Murthy to sell the property. Accordingly, out of her free will she had sold the property jointly to her daughter and son-in-law. Despite the same, Sri Raghunandan has made a false claim in the suit that the mother has supported the 22 same with dishonest intention. Reference is made to the rival pleadings in detail and the issues framed thereto. The issues have been recast while writing the judgment without opportunity. When the dishonest intention was noticed, the suit for ejectment was filed. Not only under the WILL, power to sell has been given to Smt. Nirmala Murthy, even otherwise she would become the absolute owner in view of Section 14 (1) of the Hindu Secession Act. The entire allegation of she being unwell and being drowsy due to drugs are all created. She had come back from the trip two days prior and not in the manner as narrated. In that regard, the oral evidence and cross-examination is referred. She had received the entire sale consideration by cash and admitted the same before the Sub-Registrar. The witness-PW-2 has also stated with regard to the same. In fact she was interested in hiding the transaction from her son. If her son was residing with her, she would have told him in the beginning itself, if what she is now saying was a fact. The letter at Ex.P.17 and additional document sought to be produced are relied to contend 23 that the mother herself did not have good opinion on her son. After having sold the property, the mother and son have connived and she had thereafter received further amount which was credited to her account and she had reinvested. The document at Ex.D.1, a rental agreement relied on is the handiwork of the son Sri Raghunandan as evident from the stamp paper purchased in BHEL Branch and it is created by tracing the signature of Dr. Bhavani. The son-in-law has obtained loan as seen from the documents. When she had the power to sell and when she has sold and utilised the money, the question of playing fraud in executing the sale deed does not arise. She was worldly wise and had knowledge of both Kannada and English. Thus, the learned counsel by referring to the documents on record would contend that the sale is valid. Further, in reply he would state that the sale deed contains an endorsement for payment. That was the actual value and the sale deed has not been referred to under- valuation. The contention that the subsequent amount received is for son's education cannot be accepted as 24 education loan had been taken and there was a joint account. The suit is filed by Raghunandan only. Till this day, Smt. Nirmala Murthy has not challenged by filing any suit or by filing complaint if in fact fraud was played. Hence, it is prayed that the appeal be allowed.
18. Sri B.K. Sampath Kumar, learned counsel for Smt. Nirmala Murthy would seek to sustain the judgment passed by the Court below. The sale deed does not refer to the last WILL under which she was merely an Executor and could not have sold the property. Hence, fraud was played and without even mentioning the relationship, the sale deed was drafted. There is no proof for passing of consideration and Sub- Registrar has also not endorsed for payment in his presence. The cross-examination of PW-1 would disclose the manner in which she was left at Sub- Registrar's Office after the registration. If so much cash had in fact been paid, it is difficult to accept as to how the mother would have been left like that without knowing where she went after the registration. The witnesses examined are all interested witnesses. Sale 25 deed was presented at 5.30 p.m. The daughter has not been examined. When payment was disputed, there should have been proof to show that they possessed that much amount. The witnesses to the sale deed have not been examined. All the surrounding circumstances will show that by playing fraud, the sale deed was obtained. No intention was expressed by the Testator as per Ex.P-1 to sell the property. Despite the same, the daughter has influenced and secured Smt. Nirmala Murthy to execute the WILL with a view to deny the property to the son. Sale deed which is obtained by misrepresentation is void. Despite the WILL providing a share to the son, he has not been informed. The onus was heavy on the daughter and son-in-law to establish that it is a valid sale deed, but it had not been discharged. Amount paid after the sale deed is not material as it is paid for son's education. The document sought to be produced now cannot be accepted, as it does not satisfy the requirement of Order XLI Rule 27 of CPC and it is also fabricated.
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19. Sri D.R. Sundaresh, learned counsel for Sri Raghunandan would also seek to sustain the judgment of the Court below. The fact that there were two WILLs is not in dispute but the later WILL is the holograph WILL and that being the last WILL was within the knowledge of all the parties. The sale deed does not refer to the last WILL but the earlier WILL alone has been referred in the sale deed. Sri Raghunandan has only sought for implementation of the WILL dated 07.06.1995 as per his prayer in the suit which cannot be denied since that was the intention of the Testator. The entire intention of the daughter and son-in-law was to keep the son out of picture and knock-off the property. Son has only sought for his share. The mother has not been given the right only to sell the property as provided in the WILL but she should also apportion the same as mentioned therein if she sells the property. The sale deed based on invalid documents cannot be considered as valid. Even if it is sold, the son should know the consideration so as to know the share to which he is entitled. The registered WILL and 27 intention of the Testator is not respected by the daughter and son-in-law. Sri Suresh Babu's affidavit evidence itself is not valid as it is not in accordance with the Notaries Act and as such no evidence in effect is tendered. When the sale deed is illegal, the suit for ejectment is not maintainable.
20. In the light of the above the following points arise for consideration, they are;
(i) Whether Smt.Nirmala Murthy has the right to sell the suit schedule property acting under the WILL dated 07.06.1995 (Ex.P-1) or otherwise?
(ii) In either case, whether the sale deed dated 25.02.2004 executed by Smt. Nirmala Murthy is obtained by fraud against her will as alleged?
(iii) Even if fraud on the part of Dr. M.S. Bhavani and Sri Suresh Babu is not established, and notwithstanding the power to sell under the WILL whether the sale deed dated 25.02.2004 provide absolute right to them ? 28
(iv) What relief are the parties entitled to in the facts and circumstances of the case, in these appeals?
21. Having noticed the manner in which the parties have made allegations against each other and the rival contentions have been raised, there can be no doubt that late M Srinivas Murthy would be turning in his grave in repentance for having left behind the property. I feel forced to comment in this manner because from the very perusal of the WILL dated 07.06.1995, it would disclose that he was a person of moderate means, despite that provided good education to both his children and with great difficulty constructed the house with his retirement benefits and by securing loan and also took up private employment after retirement to clear the loan. That apart, he even made provision for the manner in which the property would be enjoyed after his death, yet the resultant position is open for all to see, for which all his legal heirs have contributed in equal measure. Be that as it 29 may, the rights of the parties have to be decided on the material available on record.
22. The first and foremost document to be noticed is the WILL dated 07.06.1995 which is marked as Ex.P-
1. Though the WILL dated 18.05.1995 has been referred to in the pleadings and referred to in the disputed sale deed dated 25.02.2004, it is not in dispute that the last WILL is the one dated 07.06.1995 and the rights will be regulated by the same. Hence, the proof of the WILL does not arise, but there is dispute with regard to the intention of the Testator and the extent of right granted to Smt. Nirmala Murthy, the wife of the Testator and also the right of the daughter Dr. Bhavani and son Sri Raghunandan in relation to the property. The learned counsel for Dr. Bhavani, in order to justify the purchase made by her and her husband would contend that Smt.Nirmala Murthy had absolute right by referring to the contents of the WILL and to Sections 14 (1) and (2) of the Hindu Succession Act. The decision in the case of V. Tulasamma and Others -vs- Sesha Reddy (dead) by L.Rs. [(1977) 3 SCC 99] is referred wherein 30 with reference to the said provision it is held that a widow is entitled to maintenance out of her deceased husband's estate irrespective of whether that estate is in the hands of his male issue or is in the hands of his co- parcener. The widow would get the property by virtue of her pre-exiting right and the instrument would only effectuate such pre-existing right. The decision in the case of Thota Sesharathamma and Another -vs- Thota Manikyamma (dead) by LRs and Others [(1991) 4 SCC 312) on the same proposition is relied on, wherein it is held that the life estate granted to a Hindu woman by a WILL would become her absolute estate by operation of Sub-section (1) of Section 14 if she was already possessed of the property as a limited owner and the grant was in recognition of the pre- existing right. The decision in the case of C.Masilamani Mudaliar and Others -vs- Idol of Sri Swaminathaswami Thirukoil and Others [(1996) 8 SCC 525] on the same point is relied upon. Though that is the well established position of law, in my opinion, the same cannot be made applicable to the 31 present facts as the case herein is not proceeded on that basis by pleading in that regard. Further, Smt. Nirmala Murthy herself has not claimed such right to the property based on pre-existing right. In the instant case, it is mere testamentary succession based on its terms, which needs consideration in that regard. As such, the said cited decisions are not of assistance.
23. The learned counsel for Dr. Bhavani has further relied on the decision in the case of Siddamurthy Jayarami Reddy (dead) by LRs -vs- Godi Jayarami Reddy and Another (2011 (5) SCC 65) wherein it is held that the Court must put itself as far as possible in the position of a person making the WILL in order to collect the Testator's intention from his expressions and the manner in which repugnant provision and a defeasance provision in the WILL is to be considered and it is held as hereunder:
"The distinction between a repugnant provision and a defeasance provision is sometimes subtle, but the general principle of law seems to be that where the intention of the donor is to 32 maintain the absolute estate conferred on the donee but he simply adds some restrictions in derogation of the incidents of such absolute ownership, such restrictive clauses would be repugnant to the absolute grant and therefore void; but where the grant of an absolute estate is expressly or impliedly made subject to defeasance on the happening of a contingency and where the effect of such defeasance would not be a violation of any rule of law, the original estate is curtailed and the gift over must be taken to be valid and operative. In the present case, the clause in question is not a repugnant condition, but a defeasance provision."
24. The learned counsel for Dr. Bhavani has also referred to the decision in the case of Shyamal Kanti Guha (dead) Through LRs. and others -vs- Meena Bose [(2008) 8 SCC 115]. The said decision is also relied upon by the learned counsel for Smt. Nirmala Murthy, wherein the Hon'ble Supreme Court has held that the WILL should be construed by a Court indisputably placing itself on the armchair of the Testator. The endeavour of the Court should be to give effect to his intention. The intention of the Testator can 33 be culled out not only upon reading the WILL in its entirety, but also the background facts and circumstances of the case. Stating so, the Hon'ble Supreme Court interpreted the Clauses arising in the said case and has held that there cannot be any doubt whatsoever that in the event of inconsistency between two parts in the WILL, the last shall prevail having regard to Section 88 of the Succession Act, 1925, but once it is possible to give effect to both the Clauses which although apparently appear to be irreconcilable, the Court should take recourse thereto.
25. Keeping in view the guidelines enunciated by the Hon'ble Supreme Court in a matter of construction of the WILL, the WILL arising for consideration in the instant case needs to be perused. The last WILL dated 07.06.1995 is a holograph WILL and is also registered in the Office of Sub-Registrar, Rajajinagar, Bangalore. As already noticed, the genuiness and validity of the WILL is not in dispute. The nature of the provision made in the WILL with regard to the suit schedule property only arises for consideration to determine the 34 right of the parties. In order to appreciate the same in its correct perspective, it would be necessary to extract the relevant part of the WILL which arises for consideration. On referring to his daughter staying with her husband and son separately, the Testator has also stated that it is his moral duty to provide her a share in his immovable property. Thereafter it reads as follows:
"After my death, my wife Smt. Nirmala shall be sole legal and rightful heir over my immovable and movable property and she will have every right and authority to sell, mortgage and lease my house or totally bequeath it to anybody who take care of her in her last days, and old age also.
The decision of my wife Smt. Nirmala is supreme in this matter and none of my children i.e., Bhavani and Raghunanda have any right to question my wife, put unjust claim, obstruct or put any obstacle for the manner my wife deals with my property.
It is my desire that the house should be sold and sale amount be divided among my daughter and my son as per the decision of my 35 wife. My wife shall endev (sic) to sell the (sic) during her lifetime.
In case my wife is unable to sell the house during her lifetime, my daughter shall be the seller of the house and she should (sic) the house mutually with my son Raghunanda."
26. The reading of the above portion of the WILL would indicate that the Testator has provided for two parts. Firstly, the manner in which his wife Smt. Nirmala would have right to the property and would deal with the same. Secondly, the provision made is the manner in which the property should be dealt by the daughter and son if his wife Smt. Nirmala Murthy does not sell the property during her lifetime. In such event, his daughter has been endowed with the responsibility to sell the property and the cooperation of his son is solicited. In such event, the manner of distribution of the amount has been provided for so as to ensure that the son Raghunandan would get Rs.2,00,000/- in addition to his equal share with Dr.Bhavani so as to make it more than his daughter Dr.Bhavani's share. 36 Provision is also made for Rs.50,000/- to be deposited in the joint account of Dr. Bhavani and her son Sameera. On noticing the said contents, it would be clear that the second part of the WILL with regard to the manner in which the property is to be sold by the daughter and the amount being apportioned does not arise for consideration at this juncture since Smt. Nirmala Murthy is still alive and the first part of the WILL enabling her to deal with the property and the manner in which she had dealt would alone arise for consideration.
27. In that regard, a perusal of the two Clauses in the first part would disclose that by the first part, the Testator has disinherited the daughter and the son from succeeding to the property but, has made Smt. Nirmala his wife as the sole legal and rightful heir over all his immovable and movable properties and an absolute right has been granted to sell, mortgage and lease the house or even to bequeath to anybody who takes care of her in her last days. The said situation of bequeathing in any event has not arisen but, she retains the 37 absolute right to sell, mortgage and lease the property and the Testator has further clarified that her decision is supreme and the children have no right to question or put unjust claim. In the next Clause, he has expressed his desire that the house should be sold and the sale amount be divided among the daughter and son as per her decision and that she endeavour to sell during her lifetime. What is to be noticed is the word employed therein is 'desire' and not his intention that she must sell. Therefore, if both the Clauses are read together, though a right has been given to his wife to sell the property, it is to be exercised at her own discretion and there is no compulsion to do so. It was only his desire that she endeavour to sell it during her lifetime and divide the amount as per her desire. Hence, if she chooses to sell, even then division would be as per her desire and not as indicated in the second part where the daughter is to sell the property and distribute the amount after the death of the Testator's wife. But, both the children would become entitled to a share if she sells the property.
38
28. The intention of the Testator definitely is not that the wife should compulsorily sell the property and remain shelter-less during the remaining part of her life by distributing the amount to the children but, it was a discretion to be exercised by her. Therefore, insofar as selling the property during her lifetime, it cannot be accepted that she was a mere executor of a WILL. On the other hand she herself was a beneficiary who had the right to exercise her discretion with regard to the property. Though it is contended on behalf of the son that she was only an executor and could not have sold the property, it is contrary to what has been pleaded in his own suit to state that the mother's decision was supreme as per the WILL. Hence, under the WILL there was absolutely no fretters on Smt. Nirmala Murthy to sell the property provided she exercised such discretion voluntarily at her own will and thereafter used the sale consideration as desired by the Testator. At the same time, there was no compulsion that she must sell it but the desire i.e., it was only a wish of the Testator that 39 she sells and divides the amount to the children during her life time. Hence, in the instant case, I am of the considered opinion that the WILL provides right to Smt.Nirmala Murthy to sell the property but, it is at her option when she voluntarily chooses to do so. Accordingly, Point No.1 framed above is answered in the affirmative.
29. Though I have arrived at the above conclusion, in view of the contentions urged and the very stand taken by Smt.Nirmala Murthy herself that the sale was not voluntary, the question that would arise is as to whether the transaction under which Dr.Bhavani and Sri Suresh Babu claim to have purchased the property has been done out of her own free will since Sri Raghunandan as well as Smt. Nirmala Murthy contend that it was obtained out of fraud and coercion. Even otherwise, the question that would arise is as to whether the sale is in consonance with the desire expressed by the Testator when Smt. Nirmala Murthy herself contends that she did not intend to sell. Hence, even if fraud and coercion is not established, it would 40 have to be examined as to whether the sale transaction is a natural and bonafide one where sale consideration had passed since to that extent, Sri Raghunandan would have interest to receive a portion of the sale proceeds, if Smt. Nirmala Murthy had exercised the option to sell the property as per the desire of the Testator.
30. In order to establish that the sale deed dated 25.02.2004 executed by Smt. Nirmala Murthy was a bona fide transaction for valuable consideration, the son-in-law Sri Suresh Babu has been examined as P.W.1 by filing his evidence by way of affidavit. At the outset, the contention by the learned counsel on behalf of Sri Raghunandan that the said affidavit attested by a Notary in Australia would not be admissible for not being in conformity with Section 14 of the Notaries Act needs to be considered. In this regard, it is no doubt true that an affidavit sworn to outside the Country would be acceptable in the manner as provided therein. Firstly, it is not shown that it has not been notified. However, in the instant case, it is not as if the affidavit 41 was filed and that was the end of the matter. Pursuant to filing such affidavit, he has appeared before the Court and the same has been treated as his examination-in- chief and on such examination, he has been cross- examined by the advocates representing the opposite parties. Therefore in such circumstance, it would amount to recording his evidence and therefore the same cannot be discarded only on that count. If at all such objection was available, it should have been raised before availing the opportunity of cross examination since the same being a curable defect could have been rectified by filing a fresh affidavit or recording the examination when he was very much present in Court. In that light, the evidence of PW-1 cannot be discarded as contended.
31. In his evidence, wherein he has been considered as P.W.1, in respect of both the suits Sri Suresh Babu keeping in view both the cases has referred to the sale deed dated 25.02.2004 which was registered in their favour by his mother-in-law and he has contended that they were in possession thereafter 42 and had left to Australia on 08.06.2004 by permitting Smt.Nirmala Murthy to occupy as they did not want to give it on lease and that she is in permissive possession and liable to vacate.
32. He has stated that Smt.Nirmala Murthy in fact pressurised them to purchase the property to retain it in the family and also since she can continue to stay therein. Accordingly, a valuable consideration of Rs. 16,42,000/- was paid by way of cash before the Sub- Registrar. However, she started pressurising them thereafter stating that the value was much more and as such he borrowed a sum of Rs. 14,00,000/- from ICICI Bank on 21-5-2004 and transferred to her account. Again a sum of Rs. 7,21,214/- was borrowed on the security of another property and paid vide pay order dated 03-06-2004. Again Dr.Bhavani issued a cheque for Rs.10,00,000/-. He stated that due to such payments, in all a sum of Rs.47,62,214/- has been paid. Despite that, she has joined hands with Sri Raghunandan at this point. He stated that all their things were shifted into the house after the sale was 43 made, yet she was allowed to stay in the house but she has not reciprocated their noble gesture. In the cross examination, he has denied the suggestion that Smt.Nirmala Murthy did not have the authority to sell as per the WILL. He admits that he has not obtained any other document except the sale deed for having paid Rs.16,42,000/- and that there is no endorsement that it was paid before the Sub-Registrar. He says that it is stated in the sale deed that the entire sale consideration was paid. The subsequent payments are after the sale deed and Rs. 10,00,000/- is on 23-03-2006 i.e. after two years. He says that the sale negotiation had taken place three months prior. He has been cross examined in detail with regard to the manner in which it was proceeded for registration. He has denied the suggestion that she was taken on the pretext of being taken to the VISA office and the questions are directed at suggesting about their attempt to knock off the property. Since it was not required to inform Raghunandan about the sale as per the legal advice, he was not informed is what he has stated. All other suggestions put to him regarding 44 he having sent Smt.Nirmala Murthy for the trip and that she had returned only on 25.02.2004 and that Dr.Bhavani was treating her mother for depression etc were the suggestions directed at the circumstance under which the sale deed was got executed but he has denied all such suggestions. Though he has denied with regard to the timing of the registration of the sale deed being beyond office hours, with regard to the payment sale consideration, it is stated that he had carried Rs.16,42,000/- to the office of the Sub-Registrar in a big bag, counted the amount in the presence of the Sub- Registrar and paid it to Smt.Nirmala Murthy. He states that Smt.Nirmala Murthy had gone to their house before going to the Sub-Registrar's office but was not accompanied by anybody when going back and he does not remember if it was about 7.30 p.m. He has denied that the subsequent payments were made towards his son Sameer's education. It is to be noticed that with regard to the allegation of fraud and coercion as also she being drugged, nothing has been extracted in the cross examination. As such it would still be the burden 45 of Smt. Nirmala Murthy and Sri Raghunandan to establish the same in line with the allegations made and the suggestion put in cross examination. However, with regard to the payment of sale consideration having been asserted by Dr.Bhavani and Sri Suresh Babu, it would have to be established by them apart from the oral assertion.
33. One Sri.V.Natarajan was examined as PW.2 to speak about the execution of the sale deed and passing of consideration. He states that he knows all the parties to the suit and he has further stated about the sale deed being executed and the consideration being paid in the office of the Sub-Registrar and that he has attested the sale deed as a witness. According to him, Smt.Nirmala Murthy has executed the sale deed voluntarily without any coercion or duress. In the cross-examination, he states that he is a friend of Sri.Suresh Babu and pleads ignorance of all matters relating to the transaction and how much sale consideration was paid. He says that during the year 2008 the property may be about Rs. 6,000/- per square 46 feet. Hence, his oral evidence would not be of assistance to prove passing of consideration.
34. One Dr.G.C.Sumathi Kumar was examined as PW.3. He also states about knowing the family and the WILL executed giving full rights in favour of Smt.Nirmala Murthy to sell the property. He states that Smt.Nirmala Murthy had expressed her desire to sell the property to her daughter and she will pay part of the sale consideration to her son and keep the amount in deposit for her maintenance. The cross examination is directed at pointing out that he has no knowledge but is examined to support the case due to his acquaintance with Dr.Bhavani. From the cross-examination of all the three witnesses though it is extracted about there being no proof for the payment of sale consideration and therefore the sale deed not being a valid one, regarding the allegation that the sale deed had been obtained by coercion and fraud when she was in a state of drowsiness, nothing material has been extracted by way of admissions from the said witness. Hence, the evidence tendered on that aspect by Smt.Nirmala 47 Murthy herself and Sri Raghunandan needs to be seen whether they have established the allegation of threat and coercion as alleged and suggested as their case.
35. Smt.Nirmala Murthy has been examined as DW-1. She states that she is getting pension and as such it is contended that she had no intention of selling the property though her husband has given the right to sell the property to third persons with the mutual consent of children. To state about the fraud played on her, she having stated about the death of her husband on 21-03-2002, has further stated that she developed depression thereafter and got high B.P as also diabeties. Her daughter Dr. Bhavani was giving treatment and her grandson Sameera was staying with her in the night. During the first week of February 2004 she was sent on South India Tour for 15 days by her daughter and son- in-law along with Sameera. She alleges that during her absence, they took away the original documents of the property. Though they were to leave Tiruchanapalli on 23.02.2004 for their return journey, she fell ill and as such cancelled the ticket and travelled on 24.02.2004. 48 In that regard, the train tickets and related bills are marked at Exhs.D-10 to Ex-D-20. Ex-D-20 indicates the date of journey as 24.02.2004 at 8.30 p.m. from Tiruchanapalli to Bangalore. Smt. Nirmala Murthy (DW.1) further states that when she reached Bangalore at 8.00 a.m. on 25.2.2004 and went to her house, her daughter Dr. Bhavani quarreled with her and took her to daughter's house. She was administered an injection and several persons had gathered there. She was thereafter drowsy and unable to understand anything. They stated that she would be taken to Australia and was made to sign several papers without being allowed to know its contents by threatening. She signed them by reposing faith in her daughter. In the evening she was taken to some office giving the impression that her photo is to be taken for VISA purpose. She was threatened and was not allowed to contact her son Sri Raghunandan by showing a revolver to her. She further states that her daughter Dr. Bhavani requested her to have the tenant vacated from the out house so as to keep her things as she vacated her tenanted house and 49 was leaving to Australia. She was accordingly allowed to keep her things in the out-house and even prepared a rent agreement. According to her, when this was the position, she burst into tears when she met her son Sri Raghunandan later and disclosed all the facts. Sri Raghunandan on verification told her that they have played fraud and obtained the sale deed.
36. The cross examination of Smt. Nirmala Murthy (DW-1) is attempted at establishing that even the father- in-law had good opinion about Sri Suresh Babu; she had absolute right to sell the property; that she had maintained contact even after the daughter and son-in- law had gone to Australia which would show that she had voluntarily sold. The letter at Exhs.P-14 and 15 is confronted but she denies it is her handwriting. Hence she was made to write in Court as per Ex-P-16 to compare the handwriting and signature. As against what she had stated in her examination-in-chief about she being taken forcibly to her daughter's house and being made to sign on the papers on threat at gun point on 25.2.2004 without allowing her to see its contents, in 50 her cross-examination she has stated that she does not know whether her daughter has taken signatures on blank papers and used it as Sale deed. She asserts that her daughter had taken the signature on the blank papers after nearly one month after the death of her husband. It cannot be lost sight that her husband died on 21.3.2002. She thereafter says that she came to know about the forging of signatures after a year. She thereafter accepts that the passport was made on 19.03.2004 and she has the same with her and it was got done by the son-in-law. It is to be noticed that the date of passport is subsequent to the date of the sale deed. As against her statement throughout that she was taken to a office and her photograph was taken and that was in the guise of VISA office, in her cross examination she states that she has never gone to Sub-Registrar's office and all her signatures were taken in her house. Then again she says that she does not know whether the original of Ex-P-1 was typed when she signed it. She however denies receipt of the sale consideration of Rs.16,42,000/- but states that a sum of Rs. 51 14,00,000/- is transferred to her account and having signed the pay order for Rs. 7,21,214/- but not having received it. But, in her further affidavit evidence she has explained the same. However in paragraph-6 of her written statement she has stated that subsequently her daughter and son-in-law have managed to remit Rs.27,00,000/- to her account. She admits that her movements were not restricted by her daughter and son-in-law.
37. Sri.Raghunandan has been examined as DW-
2. Though he has stated that he is also residing in the house by relying on Ex.D-23 to D-59 as that relates the ejectment aspect, that would arise subsequently. In so far as the sale deed and the fraud being committed, he has merely echoed what is stated by his mother. In the cross examination, it has been put to him about the ability of his mother to read and write Kannada and Engilish and that she could not have been mislead or coerced. What is important to be noticed is that he has admitted that he was in cordial terms with his sister 52 and brother-in-law even after 25.02.2004, though he refers to an attempt on his life earlier.
38. On noticing the different versions relating to the sale, in so far as the allegation made by Smt.Nirmala Murthy about she being drugged and threatened at gunpoint to sign the sale deed in the manner as alleged by her, except for her version there is no other acceptable material or evidence. Even if it is accepted that she had returned to Bangalore on 25.02.2004 from the South India trip, in the circumstances herein and her own inconsistent stand as noticed above her version cannot be believed that her own daughter Dr. Bhavani had injected her to make her drowsy and thereafter her husband threatened her at gunpoint to sign the papers. From what is noticed above, one of her version is that she has alleged that her signatures had been obtained by Dr. Bhavani on blank papers one month after the death of her husband that would be around end of March 2003 and she had used them for the purpose of sale deed. Obviously the papers used for the sale deed were printed only on 19.05.2003. 53 If in fact the blank papers were got signed in the year 2002 as alleged, even then she had ample time to raise the issue with her son Sri Raghunandan but in her written statement she states that she told her son in October 2004 and that too after contending that she was made to sign on 25.02.2004. Even if the subsequent version is considered, it is not her plain case that she had been tricked or mislead into going to the office of the Sub-Registrar in the guise of taking her to VISA office and therefore she had no reason to suspect until it came to the fore. Instead she has alleged that she was drugged and there was threat at gunpoint and thereafter she was taken to the Government office. If that be so, there being an overt act she would have had the reason to know that something was amiss so as to atleast complain to her son on the very next day itself, if not to the law enforcing authorities. If in fact the son was residing with the mother, as made out to be the very theory, the daughter having forcibly taken her itself would not have arisen nor will the question of taking away the property documents by sending her for 54 the trip have arisen. Even if that was a fact, she had no difficulty in complaining to him once she was back home. Let alone that has not been done, but, on the other hand she states that she allowed her daughter to keep her things in the outhouse after getting the tenant vacated and further she attempts to rely on Ex-D-1, the alleged agreement which is claimed to be dated 01.06.2004. Thereafter the daughter and son-in-law were in India till 08.06.2004 and several other monetary transactions had also taken place though it is claimed that it was for the purpose of education of her grandson. If in fact there was threat and coercion in the manner as stated, where is the reason for cordiality thereafter? Though she states that subsequently after some time when she met her son she burst into tears, she has not stated the approximate period when she met him in the evidence but in the written statement it is said October 2004 i.e., four months after Dr.Bhavani left to Australia. When it is being maintained by both of them i.e., Smt. Nirmala Murthy and Sri Raghunandan that the son is also in joint possession, where is the 55 question of meeting him subsequently after such a long period? But, the son, in his suit has pleaded the date of cause of action as 20.06.2006 when he was appraised of the sale which is a long period of 2 years and 4 months from the date of sale. Whether any person would have remained quiet if the sale deed was obtained against her will and that too when she had known that she had signed the papers in drowsiness when she was not allowed to see the papers under threat at gunpoint? Hence, notwithstanding the consideration of the point regarding the validity of the sale deed in question which would be adverted to hereinbelow in the facts of the present case as it ought to be in accordance with the WILL, the allegation of fraud and coercion committed by Dr. Bhavani and Sri Suresh Babu in the manner as alleged cannot be accepted. In that view, the decision in the case of Mst. Sethani -vs- Bhana (1993 Supp (4) SCC 639) relied on by the learned counsel for Smt. Nirmala Murthy would also not be of assistance. Point no.(ii) is therefore held in the negative. 56
39. While adverting to consider point No (iii) which is raised above, the extent of the evidence relating to execution of sale deed and passing of sale consideration noticed above also would be relevant. From the same and also from the conclusion reached on Point No. (ii), it could be deduced without doubt that Smt.Nirmala Murthy had the knowledge that she had executed the sale deed. But, the question is whether the sale deed executed in such manner should be considered valid if it is done in the manner contrary to the intention or desire of the Testator. From the assessment of the entire material on record, it would be clear that though Smt.Nirmala Murthy may not have had any dishonest intention, she appears to be torn between the two siblings and the motherly innocence has made her to identify herself with the daughter when she was around and has done all that was possible to help her. Thereafter, she has identified herself with the son as he is around, being unable to face him when he has confronted her about the sale and about his entitlement in such event. Whatever be that position, Smt.Nirmala 57 Murthy was required to act in respect of the property as provided under the WILL which is a solemn document as the person executing the same would not be available to implement the same. It is in that regard it needs to be examined whether the sale deed dated 25.02.2004 executed by Smt. Nirmala Murthy is as per the intention or the desire expressed by the Testator.
40. In the instant case, while answering Point No.(i) hereinabove, I have examined the WILL dated 07.06.1995 (Ex-P-1) and arrived at the conclusion that the intention of the Testator is that Smt. Nirmala Murthy would have absolute right over the property but, if she decides to honour the desire of the Testator to sell the property during her lifetime, then she would have to sell the property in a transparent manner and divide the sale proceeds amongst both the children though the manner of division would be at her discretion. In that regard, in her evidence, she has stated that she did not have the intention to sell the property. But, though she has failed to establish that the sale deed was obtained by fraud, the daughter and son-in-law having admitted 58 that they were aware of the WILL dated 07.06.1995 and its contents they were also required to honour the intention and desire of the Testator but, could not have proceeded to secure the sale deed by keeping Sri Raghunandan in the dark. When absolute right to sell was given, in my view, there was no impediment to sell it to the daughter or even to the son but in such case, it should have been even more transparent with the consultation of all since one would have kept the property and the other should have known the share of money he or she would get and the interest of Smt.Nirmala Murthy also was required to be safeguarded.
41. Learned Counsel for Dr.Bhavani and Sri. Suresh Babu in order to justify the manner in which the sale deed was executed and to contend that it was a conscious decision of Smt. Nirmala Murthy laid much emphasis on Ex.P-17 and the additional document i.e., the alleged E-mail which is said to have been written by Smt. Nirmala Murthy to show that she had knowingly sold the property and that she had repeatedly 59 mentioned about keeping it as a closely guarded secret from her son. In that regard, the learned counsel for Smt. Nirmala Murthy on filing objection to I.A. No.1/2012 filed under Order XLI Rule 27 of CPC has also relied on several decisions of this Court and the decision of the Hon'ble Supreme Court in the case of Arjan Singh -vs- Kartar Singh (AIR (38) 1951 SC
193) and in the case of Natha Singha and Others -vs- The Financial Commissioner, Taxation and Others (AIR 1946 SC 1053) with regard to the manner of exercise of discretion to receive additional documents and that it cannot be received as a matter of course. The learned counsel for Dr. Bhavani has on the other hand relied on the decision in the case of Billa Jagan Mohan Reddy and Another -vs- Billa Sanjeeva Reddy & Others (1994 (4) SCC 659) and in the case of North Eastern Railway Administration -vs- Bhagwan Das (D) by LRs (AIR 2008 SC 2139) in support of allowing the application. Having considered both the sets of decisions, though it is clear that this Court can receive the same if it is material for decision 60 of the case, on perusing the additional documents, I am of the opinion that even if the same are taken on record, it cannot make a difference to the decision since I have already arrived at the conclusion that even if she has executed the sale deed knowingly, it should be in accordance with the WILL and not in a clandestine manner. Hence, the said documents are not necessary to be taken on record.
42. In any case, the learned counsel for Dr. Bhavani has placed vehement reliance on Ex. P-17 which is said to be a letter addressed to the son Sri Raghunandan by Smt. Nirmala Murthy but was torn, which was restructured and produced. The said letter is disputed by Smt. Nirmala Murthy and as such Ex.P- 16 is got written in Court to compare the handwriting. Even if such letter as at Ex.P17 was genuine and even if admitted, her impression about her son or referring to the ill treatment meted out to the father would not matter, when she chooses to sell the property to honour the desire of her husband. When the Testator himself has not excluded the benefit to his son, the mother 61 could not have excluded the benefit to the son if she chooses to sell the property as the desire of the Testator is that his son also should get a portion of the sale consideration. It was no doubt open for Smt. Nirmala Murthy to openly declare that she is the absolute owner as per the WILL and deal with the same as she desired and it was not necessary to do it clandestinely in league with the daughter alone and keep it as a guarded secret. If Dr. Bhavani and Suresh Babu were of the opinion that she was selling it as per the desire of the Testator, then there was no need for them to keep it as a secret to be hidden from Sri Raghunandan and justify the same by contending that Smt. Nirmala Murthy had written that it should not be disclosed. Then, it would be clear that they had the common intention of depriving the benefit to Sri Raghunandan. Further, it does not stand explained as to the reason for mentioning the earlier WILL in the sale deed and not the last WILL. On the other hand, if it was being sold to divide the sale proceeds between the son and daughter as per the desire of the Testator, even if it was by selling to the 62 daughter, such arrangement could have been made with the concurrence of the son Sri Raghunandan and everything could have been done in a transparent manner including protecting the right of Smt. Nirmala Murthy to reside therein.
43. It is in that context, the payment of the sale consideration also would arise to find out whether it was a bonafide and valid transaction. It is strange that such a huge figure of Rs.16,42,000/- which is also claimed to be the full sale consideration is being asserted to have been paid by cash and that too in the manner as stated by Sri Suresh Babu. The endorsement on the reverse of the front sheet of the sale deed dated 25.02.2004 is pointed out to contend that it has been paid as recorded therein. It no doubt reads that the execution and receipt of sale consideration is admitted. That is a regular format to which the figure of Rs.16,42,000/-is incorporated. When there is serious dispute regarding payment and when there is relationship between the parties and yet when it is contended that it was paid, presumptive endorsement 63 would not be sufficient, more particularly when it is claimed that the amount was paid before the Sub- Registrar. The endorsement is not to that effect that it is paid in his presence nor does the body of the sale deed state that it is paid in the presence of the Sub- Registrar. Instead it reads that it is paid in the presence of the witnesses. Hence, the burden of establishing payment of the sale consideration becomes onerous on the purchasers when in the suit filed by the son, the vendor Smt. Nirmala Murthy examines herself as DW-1 and denies receipt of sale consideration.
44. To establish payment, PW-1 has stated that he collected the cash by loan and carried it in a big bag to the Sub-Registrar's Office and paid it to Smt. Nirmala Murthy in the presence of the Sub-Registrar. One of the witnesses to the sale deed who was examined as PW-2 has stated that the sale consideration was paid by cash in the office of the Sub-Registrar, but in his cross- examination he states that he does not know how much sale consideration was paid. In such circumstances, several questions would arise. If actually the entire sale 64 consideration was paid by cash and when the parties were related and they had left from the same place to go to the Sub-Registrar's office and when at that point, the relationship was good as per the daughter and son-in- law, was it necessary to carry the cash to the Sub-Registrar's office? Instead an appropriate receipt could have been obtained and payment could have been admitted. Further, PW-1 in his evidence was categorical in stating that after the registration Smt. Nirmala Murthy went her way all by herself, though he states that it was not 7.30 p.m. at that time. The print on the sale deed reads as 05.27 p.m. It would have taken some more time thereafter and even if it is assumed that it was around 5.45 pm or 6 pm when the formalities were over, if in fact she was carrying a huge amount of Rs. 16,42,000/- by cash in a bag, would the daughter who was there allowed her 65 years old mother to go her way all by herself without bothering about her safety and security ? In that context, the version put forth does not appear convincing and the son-in-law and daughter should have shown that they had the resource 65 or the origin of the source. Further, such huge amount could not have disappeared without a trace. Admittedly, the daughter had shifted her things to the house and had also stayed till they went to Australia during June 2004, by which time she should have known from the mother as to how the money was utilised and atleast this aspect should have been brought before the Court to show where it has been invested by the mother. In such event, the daughter and son-in-law have failed to prove that the sale deed was a result of payment of the valuable consideration and the probabilities also do not support their case.
45. If really Sri Suresh Babu was in possession of such huge cash resources, it is difficult to understand about the necessity to borrow loan immediately thereafter on the security of the same property. It cannot be a sheer coincidence that a nearly matching figure of Rs.14,00,000/-was secured as loan on 21.05.2004 and deposited to Smt. Nirmala Murthy's account and another sum of Rs.7,21,214/- on 03.06.2004. Though the second payment is disputed, 66 the first one is admitted but it is contended on behalf of Smt. Nirmala Murthy that it was for their son Sameer's education. By relying on the pass book at Exhs.P-22 to 24 and Exhs.P-25 and 26, Dr. Bhavani and Sri Suresh Babu have shown that they hold a joint account with Sameer and about his education loan. Therefore, amount transferred cannot be for education purpose. On that score, the onus was on Smt. Nirmala Murthy to establish as to how it was spent on her grandson which burden has not been discharged by her. Further Smt. Nirmala Murthy though has contended that the sum of Rs.7,21,214/- has not been received by relying on pass book at Ex.D.63, the relevant period is not indicated therein. She has on the other hand marked her own letter at Ex.D64 as if Dr. Bhavani owed her Rs.7,50,000/- and produced the pay order at Ex.D65 to imply it is that amount and the withdrawal memo at Ex.D66. Smt. Nirmala Murthy having received the amount is not truthful. Though P.W.1 had contended that Dr. Bhavani had given a further sum of Rs.10,00,000/-, the Cheque dated 25.12.2006 has not 67 been encashed and is at Ex.D.72. It is also stated that the payment was stopped since there was dispute by then.
46. The learned counsel for Dr. Bhavani made reference to the reverse side of the Cheque (Ex.D72) to point out the endorsement about the same being final settlement as payment for the property concerned and such additional payments were made due to intervention of Mediators. The said Cheque no doubt has not been encashed but, it would show that the sale consideration was being paid subsequently without establishing the cash payment, but such transaction is not envisaged under the WILL. Therefore, on analysing the above materials, the fact that Smt. Nirmala Murthy has subsequently received atleast a sum of Rs.21,21,214/- on account of the transaction subsequent to the sale deed appears probable and in the written statement it is admitted as Rs.27,00,000/-. But as on the date of the sale deed, it is not established that any consideration was paid. The totality of the evidence and the circumstance viewed from the 68 touchstone of preponderance of probability will show that Smt. Nirmala Murthy has allowed the sale to happen without receiving the sale consideration, by aiding the subsequent payment but has realised the folly when the interest of Sri Raghunandan was ignored and when that came to the fore. Though some amount has been received by her subsequently, the same cannot ratify the transaction when the same had been done in a manner which was contrary to the intention or desire of the Testator unless Smt.Nirmala Murthy and Sri Raghunandan agree to the same. When the same was not established as the correct price, it was not as per the WILL and when Sri Raghunandan was not given any portion, the sale would not be valid to bind Sri Raghunandan. Smt. Nirmala Murthy would however remain liable to repay the same to her daughter and Son-in-law and have the transaction reversed. Dr. Bhavani and Sri Suresh Babu would be entitled to recover the amount from Smt. Nirmala Murthy with its incidents and consequences if any, but certainly cannot derive absolute right under the sale deed which 69 is contrary to the desire of the Testator and Sri Raghunandan's share will not be effected. Point No.(iii) is also held in the negative.
47. Though I have arrived at the above conclusion, what is to be noticed is that Smt. Nirmala Murthy herself has not sought for declaring the sale deed dated 25.02.2004 as null and void or to hold that it is not binding on her by filing a suit or raising counter claim in the ejectment suit. However, when in the circumstances of the case it is found that the sale deed is executed in a manner where her own right which has been granted to her under the WILL dated 07.06.1995 has been defeated probably due to the position in which she was placed, more particularly when Dr. Bhavani and Sri Suesh Babu being the family members were aware of the WILL, ejecting her from the property based on such sale deed which is obtained contrary to the WILL would not arise. This would be moreso when they themselves have contended that she chose to sell it to them with the intention that she can continue to reside therein. The question however is as to the nature of 70 relief prayed by Sri Raghunandan in O.S.No.6341/2006 and whether they could be granted and whether the recast issues could have been answered in such manner when the rights of the parties are guided by the WILL. Hence, it is necessary to notice the prayer made in O.S.No.6341/2006, which reads as hereunder:
(a) For a decree of declaration, declaring that the 1st defendant and the 2nd defendants are disentitled to execute any registered sale deed in favour of the 3rd defendant;
(b) For a decree of declaration, declaring that the plaintiff has a share in the schedule immovable property along with the 1st defendant and the 1st defendant is only entitled for a life interest in respect of the Schedule immovable property;
(c) For a decree of declaration, declaring that the entitlement of the plaintiff is to sell the property along with the 1st defendant and from out of the sale proceeds to pay an amount of Rs.2,00,000/-
more than the share of the 2nd defendant to the plaintiff, in terms of the Will of late M. Srinivas Murthy and to make payment of Rs.50,000/- to Sameera, the grand son of the Testator i.e. M. Srinivas Murthy;
(d) For a decree declaring that the disentitlement of the 1st defendant to get any share or any right or alienate the Schedule Property;
71
(e) For a decree of permanent injunction, restraining the 2nd and 3rd defendants, from alienating, encumbering or creating, third party rights and to dispossess the plaintiff and the 1st defendant in their lawful possession.
48. While noticing the prayer and the issues framed and recast, the opinion expressed by me herein on Point No.(i) is to be kept in view and the extracted portion of the WILL dated 07.06.1995 is to be kept in perspective. At the cost of repetition, it is extracted again hereinbelow for comparing it with the prayer made and to consider whether the relief granted to the extent as done by the Court below is justified.
"After my death, my wife Smt. Nirmala shall be sole legal and rightful heir over my immovable and movable property and she will have every right and authority to sell, mortgage and lease my house or totally bequeath it to anybody who take care of her in her last days, and old age also.
The decision of my wife Smt. Nirmala is supreme in this matter and none of my children i.e., Bhavani and Raghunanda have any right to question my wife, put unjust claim, obstruct or 72 put any obstacle for the manner my wife deals with my property.
It is my desire that the house should be sold and sale amount be divided among my daughter and my son as per the decision of my wife. My wife shall endev (sic) to sell the (sic) during her lifetime.
In case my wife is unable to sell the house during her lifetime, my daughter shall be the seller of the house and she should (sic) the house mutually with my son Raghunanda."
49. The prayer (b) made to declare that Sri Raghunandan has a share in the property along with the mother and that the mother has only life interest would amount to rewriting the WILL since the first part extracted above would show that the intention of the Testator is to make Smt. Nirmala murthy as the sole owner of the property. The word 'intention', as per the dictionary means purpose; plan; aim. The desire of the Testator is that she should sell and divide as per her decision. The word 'desire' as per dictionary means a deep wish or want. When there is clear distinction between 'intention' and 'desire', it was for Smt. Nirmala 73 Murthy to exercise such option insofar as the desire expressed. Hence, granting prayer (b) would not arise. The grant of prayer (c) would arise only in a situation after the lifetime of Smt. Nirmala Murthy and if the property remains intact at that stage as that is the second part of the WILL which will come into force only at that stage. The prayer (d) sought is certainly contrary to the intention of the Testator for the reasons indicated above. Prayer (a) does not arise in the circumstances. However, keeping in view the circumstance that Smt. Nirmala Murthy has also supported the case of Sri Raghunandan with regard to the execution of the sale deed and supported the case of joint residence and such right being under Smt. Nirmala Murthy, the prayer (e) alone is liable to be granted in the form the prayers are framed.
50. Thus, keeping in view the conclusion that Smt. Nirmala Murthy has absolute right and in view of the stand taken by her, the Court below also has not granted the entire relief but has decreed the suit in O.S.No.6341/2006 in part by moulding the relief. Though, I have herein arrived at the conclusion that 74 fraud has not been established and have held that certain amount has been paid subsequently, the irregular nature of the transaction is held contrary to the intention and desire expressed in the WILL. Even in such circumstance the moulded relief granted by the Court below allowing the right to Smt. Nirmala Murthy as per the WILL is justified. Even though not fraudulent, since I have also arrived at the conclusion that the sale deed is contrary to the intention of the WILL, the limited relief granted to the effect that the sale deed will not bind Sri Raghunandan in any event will not call for interference. However, the findings to the effect that there was fraud, coercion and misrepresentation shall stand set aside to remain commensurate with the findings rendered on the points raised for consideration herein. Point No.(iv) is answered accordingly.
51. Notwithstanding the above conclusion and there being justification in granting the limited relief to Sri Raghunandan and to Smt.Nirmala Murthy insofar as the sale deed not binding Sri Raghunandan and enabling Smt.Nirmala Murthy to continue to occupy the 75 premises, the woes of the parties herein are far from over. Though no further relief could be granted to either of the parties keeping in view the scope of the instant proceedings, before parting, I deem it necessary to make certain observations though the same may not be in the nature of directions or a decree. At the commencement of the analysis, I had observed with regard to the parties herein not being fair to the Testator. Even at this stage, each of the parties to this litigation should realise that at this juncture though a limited relief has been granted to Sri Raghunandan and Smt.Nirmala Murthy, the property in question is already under charge to the Bank from which the loan had been secured. If that aspect of the matter is to be resolved, each of the parties herein should answer their conscience and realise the folly committed by each of them and once again come together which atleast will give solace to the soul of the Testator and help it to rest in peace. In that regard, if in fact even subsequently Smt.Nirmala Murthy has received certain amounts, an appropriate arrangement should be entered into 76 between them to provide validity to the sale deed by consensus or in the alternative to pool back the money received and have the property discharged from the Bank and thereafter jointly deal with the property as per the intention and desire of the Testator if Smt.Nirmala Murthy chooses to persist with the sale. Even at this stage, if they do not retrace their steps, it would only lead to multiplicity of legal proceedings and none of the parties herein could rejoice the limited success attained in the present round of litigation.
52. In the result the following:
ORDER
i) IA No.1/2012 filed under Order XLI Rule 27 of CPC is rejected.
ii) Though the ultimate relief granted in O.S.No.6341/2006 is affirmed, the findings stand modified in the above manner. To that extent, RFA No.1888/2011 is allowed in part.77
iii) RFA No.1889/2011 is dismissed.
iv) Keeping in view the relationship of the parties, they shall bear their own costs.
Sd/-
JUDGE Akc/bms