Andhra Pradesh High Court - Amravati
Vella Satya Rajendra Krishna, vs Smt. Vella Saroja Devi on 7 October, 2023
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
APPEAL SUIT NO.125 OF 2017
JUDGMENT:-
The judgment, dated 22.06.2016 in O.S.No.29 of 2013, on the file of Special Judge for Trial of Cases under SCs & STs (POA) Act-cum-Additional District & Sessions Judge, Vizianagaram ("Additional District Judge" for short), is under challenge in the present Appeal Suit filed by the unsuccessful first defendant.
2) The parties to this Appeal Suit will hereinafter be referred to as described before the learned Additional District Judge for the sake of convenience.
3) The case of the plaintiff, in brief, according to the averments in the plaint before the learned Additional District Judge, is that she is absolute owner of the RCC building property bearing D.No.12-10-3, Assessment No.1093023917, Plot No.60 in S.No.112/2 in Vizianagaram 2nd bit, Vizianagaram Municipality, Vizianagaram. She purchased the vacant site on 11.01.1983 from Guntuboyina China Suryanarayana and others by means of Registered Sale Deed No.55/1983, registered in Vizianagaram Sub-Registrar Office. Since the date of purchase, she was in possession and enjoyment of the same. She has one son i.e., the first defendant, Satya Ramendra Krishna, who is a 2 permanent resident of Visakhapatnam. She has five daughters viz., Satyakala, Parvin, Bhagyalakshmi, Rohini and Phanimala. They are all well settled. They used to live separately from the plaintiff. The first defendant never looked after her at any time. Except the schedule property, plaintiff has no other property to live and to maintain herself. She is old aged and she has to meet her all livelihood needs. While so, her children including the first defendant used to quarrel with her on one pretext or the other to grab the schedule property from the plaintiff and also threatened her. The plaintiff approached the II Town Police Station on 21.08.2008 seeking police protection against her all children on a day of annual death function of her husband to be held on 13.09.2008. Police issued a receipt bearing No.375/2008, dated 21.08.2008. On coming to know that the first defendant came to Vizianagaram and made conspiracy with his friends, the plaintiff again approached the II Town Police on 10.10.2009 and made a report. II Town Police issued a receipt bearing No.587/2009, dated 10.10.2009. Even thereafter, the plaintiff has no good relations with the first defendant and her daughters. While so, taking advantage of the illiteracy and innocence of the plaintiff, the first defendant with the help of his wife Shanti @ Shanti Krishna and two others fraudulently misrepresented the plaintiff, as if the registered Sale Deed 3 No.55/1983, dated 11.01.1983, was called upon by the Sub- Registrar, Vizianagaram, for computerization of the said documents. While so, they fraudulently got the plaintiff's signatures and thumb marks and photos. Subsequently, on 30.03.2013 the plaintiff and her daughters were called by the S.I. of Police, II Town Police Station, Vizianagaram. On 31.03.2013 the plaintiff and one of her daughters by name Bhagya Lakshmi attended before S.I. of Police II Town Police Station, Vizianagaram. Then they came to know from the S.I. of Police that the first defendant lodged a report against the plaintiff that she is not giving possession though executed registered gift deed and that the plaintiff and her daughters are threatening the first defendant, as such, police protection is requested. On 31.03.2013 the first defendant did not attend before II Town Police Station, Vizianagaram. In his absence, the police conducted enquiry and recorded their statements. The plaintiff told the police that she never gave any gift in the shape of Rs.12,00,000/- to the first defendant either on 09.04.2012 or subsequent to that date and she never gave any gift in the shape of cash of Rs.12,00,000/- to the wife of the first defendant. The first defendant and his wife conspired themselves and made a fraudulent plan to grab cash of Rs.12,00,000/- and they succeeded in their illegal attempt under 4 which the wife of the first defendant through RTGS Transfer/SH231916, dated 09.04.2012 fraudulently transferred the money of plaintiff, which was kept in Andhra Bank bearing Account No.060910025701725 into the account of first defendant's wife. The first defendant represented before II Town Police that his mother gave gift of Rs.12,00,000/- which is an illegal and fraudulent representation. The plaintiff reserved her right to file a separate suit for recovery of Rs.12,00,000/- from first defendant and his wife. On 01.04.2013 the plaintiff made enquiry about the gift deed bearing No.1998/2012, dated 12.04.2012 before the Sub-Registrar Office, Vizianagaram and she came to know that the first defendant mortgaged the property to the second defendant for Rs.1,00,000/- by executing a simple mortgage deed with the help of Registered Gift Deed bearing document No.1998/2012, dated 12.04.2012. The plaintiff did not deliver the possession of the property to the first defendant at any time. She is residing in the ground floor and she got household ration card to that effect. The plaintiff is paying house tax to the Vizianagaram Municipality for the schedule property. The gift deed alleged by the first defendant was obtained only by playing fraud and misrepresentation, as such, it is liable to be cancelled and the mortgage, if any, by the first defendant to the second defendant is not valid and binding 5 on the plaintiff. The plaintiff is not aware of the contents of the gift deed. The first defendant took the illiteracy of the plaintiff as an advantage and obtained a fraudulent gift deed. Hence, the suit to cancel the gift deed.
4) The first defendant before the learned Additional District Judge got filed a written statement denying the case of the plaintiff and his contention, in brief, according to the contents of written statement, is that the gift deed was executed by the plaintiff in favour of the first defendant on 12.04.2012 at her free will and pleasure. It was the duty of the Sub-Registrar to explain the contents of the document and only after thorough satisfaction from the executant about the knowledge and contents of the document, he will sign the document for registration. It is false that the first defendant obtained gift deed by playing fraud. The plaintiff is well educated and a woman moving in high society with all voluntary service oriented organizations. She kept quiet for a long time and she filed a suit for cancellation of gift deed belatedly. The allegations of the plaintiff against the first defendant are nothing but unnatural. The plaintiff sold away an apartment on 23.12.2009 for about Rs.20,00,000/- along with her daughter and she also sold away another property on 02.02.2009 for about Rs.20,00,000/- and the entire amount was taken away by her. She has also other 6 immovable properties. After the death of her husband, on 21.09.2007, the first defendant used to look after his mother with love and affection and provided all amenities. So, the plaintiff with her free will and love and affection gifted the schedule property to the first defendant. The allegations with regard to the transfer of money of Rs.12,00,000/- from the bank account of the plaintiff to the bank account of first defendant deserves no answer, as plaintiff can avail the remedies available under law against the wife of the first defendant. Unless there is any clause in the gift deed, it cannot be cancelled. Even now the first defendant used to pay Rs.20,000/- to his mother towards her maintenance. Plaintiff is not living in the schedule property. At present, she is at Chennai at her daughter's house. The first defendant is residing in ground floor and first floor. Hence, the suit is liable to be dismissed.
5) The second defendant got filed a written statement denying the case of the plaintiff and his contention is that the concerned Sub-Registrar has to ask the donor of the document about free will and consent and after satisfying about the same only, he would allow for registration. The allegations raised by the plaintiff are all false. The first defendant approached the second defendant for obtaining loan and the second defendant after making necessary enquiry with regard to the title of the 7 property granted loan to the first defendant. The first defendant executed a simple mortgage deed for nominal amount in favour of the second defendant. Being a mortgagee, the second defendant has absolute right to proceed with the suit schedule property in the event of default by the first defendant. Hence, the suit is liable to be dismissed.
6) On the basis of the above pleadings, the learned Additional District Judge, settled the following issues for trial:
(1) Whether the gift deed is obtained by the defendant by fraud?
(2) Whether the gift deed cannot be cancelled under Section 126 of the Transfer of Property Act?
(3) Whether the suit is maintainable under law? (4) To what relief?
7) During the course of trial, on behalf of the plaintiff before the Additional District Judge, P.W.1 to P.W.4 were examined and Ex.A.1 to Ex.A.6 and Ex.X.1 to Ex.5 were marked. On behalf of the first defendant, D.W.1 and D.W.2 were examined. It is evident from the record that on behalf of the second defendant, no witnesses were examined.
8) The learned Additional District Judge on conclusion of the trial and on considering the oral as well as documentary evidence, answered the issues in favour of the plaintiff, as such, decreed the suit of the plaintiff with costs by cancelling Ex.A.1, 8 gift settlement deed as null and void and further directing the first defendant to pay exemplary costs of Rs.1,000/-. Felt aggrieved by the same, the unsuccessful first defendant filed the present Appeal Suit.
9) Now, in deciding the appeal, the points that arise for consideration are as follows:
(1) Whether the plaintiff before the learned Additional District Judge proved her entitlement to seek cancellation of Ex.A.1, gift settlement deed, as vitiated by fraud and misrepresentation? (2) Whether the judgment and decree of learned Additional District Judge is sustainable under law and facts and whether there are any grounds to interfere with the same? (3) To what relief?
Point Nos.1 and 2:
10) P.W.1, the plaintiff before the learned Additional District Judge, got filed her chief examination affidavit adverting to the plaint averments. Through her examination, Ex.A.1 to Ex.A.6 were marked i.e., Ex.A.1 is certified copy of Registered Settlement Deed, dated 12.04.2012, Ex.A.2 is receipt issued by the Station House Officer, dated 10.10.2009, Ex.A.3 is receipt issued by the Station House Officer, dated 21.08.2008, Ex.A.4 is property tax demand notice, dated 26.01.2012, Ex.A.5 is tax payment receipt, dated 26.04.2012 and Ex.A.6 is Household ration card.9
11) The plaintiff further examined P.W.2, who deposed that he is the Assistant Manager, Andhra Bank, Vizianagaram.
He is summoned to produce the documents pertaining to account of Vella Saroja Devi, S.B. Account bearing Account No.060910025701725. He brought the account cheque issued by Saroja Devi in favour of Indian Bank account of Seethammapeta Branch for Rs.12,00,000/-. Ex.X.1 is the said cheque. He also brought the requisition slip for RTGS, made by Saroja Devi on 09.04.2012. Ex.X.2 is the said requisition slip marked. Ex.X.2 requisition made was under RTGS in favour of Shanti Krishna.
12) The plaintiff further examined P.W.3, who is the Assistant Sub-Inspector, II Town Police Station, Vizianagaram to prove that previously P.W.1 lodged reports against her children. The evidence of P.W.3 is that Ex.A.3 is the acknowledgement given by them for the complaint copy made by Saroja Devi, plaintiff. Ex.X.3 is the said original complaint pertaining to Ex.A.3 receipt. Ex.X.4 is the statement of Saroja Devi, recorded by them. Ex.A.2 is another receipt given by them on 10.10.2009 on the report given by Saroja Devi. The Entry is also present in the register of complaints. The receipt number is 587/2009 (tallied with Ex.A.2 receipt). There is no report corresponding to Ex.A.2 receipt available. The plaintiff's son i.e., the first 10 defendant also gave a report to Superintendent of Police, who forwarded the same to S.I. of Police on 13.03.2013. Ex.X.5 is the said endorsement given by Superintendent of Police.
13) The plaintiff further examined one of the daughters by name Smt. Vella Bhagya Lakshmi as P.W.4 and the chief examination of affidavit of P.W.4 is in support of the case of the plaintiff.
14) The first defendant got filed his chief examination adverting to his case as narrated in the written statement. During the cross examination of D.W.1, Ex.B.1, a copy of report given by him on 09.03.2013 to Inspector of Police is marked. The first defendant further examined D.W.2 the so-called scribe of Ex.A.1, who deposed that he drafted original of Ex.A.1 executed by P.W.1 in favour of the first defendant. He scribed original of Ex.A.1 as per the instructions given by P.W.1. Generally, the Sub-Registrar will read the contents of document to the executants only after confirmation, he will register it. He will make the endorsement to that effect on the back of the said document. There are two attesters in Ex.A.1. He signed as scribe in Ex.A.1. P.W.1 signed in each page of the document in his presence.
15) Smt. S. Lakshmi Prameela, learned counsel, representing Sri Kuriti Bhaskara Rao, learned counsel for the 11 appellant, would canvass the facts as mentioned in the written statement of the first defendant. She would contend that there is no dispute about the relationship of the plaintiff and the first defendant. As the first defendant took care of the plaintiff after the demise of her husband and treated her well, the plaintiff thought of to create rights in favour of the first defendant under Ex.A.1 in respect of the house property and in pursuance of that only, the plaintiff executed Ex.A.1 gift-cum-settlement deed in favour of the first defendant. It was executed in accordance with the provisions of the Transfer of Property Act by way of a registered document. Ex.A.1 gift deed was acted upon because the possession was delivered on the date of Ex.A.1. Ex.A.2 and Ex.A.3, the so-called receipts for the complaints lodged by the plaintiff against her children were in the year 2008 and 2009, which cannot be a basis to the trial Court to see that there was animosity between the plaintiff and the first defendant. In fact, being influenced by P.W.4 only, the plaintiff thought of to file a suit with invented allegations. When the plaintiff was creating trouble with regard to the enjoyment of the property by first defendant, first defendant lodged Ex.B.1. The contention of the plaintiff that by fraud and misrepresentation, Ex.A.1 was obtained by the first defendant in collusion with his wife is nothing but false. Ex.A.1 was a registered document and the 12 Sub-Registrar was supposed to explain the contents thereof to the executants. The plaintiff did not examine the witnesses to Ex.A.1. On the other hand, it is the first defendant, who examined D.W.2 to prove the due execution of Ex.A.1. The plaintiff was highly educated and she was carrying respect in the society, as such, she cannot pretend innocence or ignorance as to the contents of Ex.A.1. It was only after thought that she instituted the suit against the first defendant upon the influence made by her daughters. In fact, the plaintiff also transferred a sum of Rs.12,00,000/- under Ex.B.1 and Ex.B.2 in favour of the wife of the first defendant and later alleged that it was also by way of fraud and misrepresentation. The trial Judge did not consider the evidence in proper perspective. The trial Judge erroneously believed the case of the plaintiff. The evidence of D.W.1 and D.W.2 proves that the plaintiff executed Ex.A.1 voluntarily in favour of the first defendant conveying the plaint schedule property. The evidence of P.W.1 and P.W.4 is not at all convincing. The evidence of P.W.2 and P.W.3 was of no use in the absence of establishing any fraud. With the above submissions, the learned counsel would submit that the appeal is liable to be allowed by setting aside the judgment of the trial Court.
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16) Dr. Majji Suri Babu, learned counsel appearing for the respondent, would contend that the contents of Ex.A.1 gift deed as if out of love and affection, the plaintiff executed Ex.A.1 in favour of the first defendant was attacked by the plaintiff by relying upon various circumstances before the learned Additional District Judge. It was a case right from death of the husband of the plaintiff bad blood flowing especially between the plaintiff and the first defendant. Anticipating a quarrel and violence, plaintiff lodged two reports with the police in the year 2008 and 2009 and they were brought in evidence. As on the date of alleged Ex.A.1, the plaintiff was residing in the plaint schedule property. The first defendant never resided in Vizianagaram along with the plaintiff. There was no explanation from the first defendant as to how he came into possession of the plaint schedule property. No piece of paper was filed in this regard. The suggestions put forth before P.W.1, which were denied, and the admissions made by D.W.2 show that he was residing in Visakhapatnam only and he was not residing in Vizianagaram. The plaintiff had no other residential property to reside. In fact, in the year 1983 she purchased vacant site and later constructed the house with her own sources. The alleged Ex.A.1 also contained the said whisper because the first defendant got the same mentioned. During cross examination of P.W.1, the 14 first defendant tried to set up a theory as if the property was purchased with the source of his father. D.W.1 in cross examination further deposed falsely that everybody in the family contributed for construction of the said house. Though the plaintiff denied the execution of Ex.A.1, but even it alleges that the property was purchased by the self-earnings of the plaintiff and later with her own funds she constructed the house. Therefore, the conduct of the first defendant can be inferred from the suggestions put forth before P.W.1 and answers in cross examination. It is never the case of the first defendant that what all the properties which were sold away by the plaintiff were the joint family properties. The first defendant had no semblance of right over the properties possessed by the plaintiff. Thus, when she had no other residential property, it is quite improbable that she would convey the property in favour of the first defendant. Apart from this, she had no necessity to transfer a sum of Rs.12,00,000/- in the name of the wife of first defendant. The first defendant and his wife further played fraud and got transferred Rs.12,00,000/- to the account of the first defendant's wife, which is the subject matter in A.S.No.787 of 2017. D.W.1 pretended ignorance as to whether who filled up Ex.B.1 contents cheque and the contents of RTGS application. All these goes to show the fraud and misrepresentation made by 15 the first defendant. The allegations of fraud and misrepresentation have to be proved by relying upon the circumstances. The various circumstances referred to above prove that Ex.A.1 is vitiated with fraud and misrepresentation. The evidence of D.W.2, the scribe is of no use to the case of the first defendant by virtue of his admissions in cross examination, which was elaborately dealt with by the learned Additional District Judge. The very written statement of the second defendant is also vague. The second defendant did not explain as to the amount allegedly borrowed by the first defendant by allegedly mortgaging Ex.A.1 schedule property. He just filed written statement and did not contest the suit. The second defendant did not let in any evidence. The learned Additional District Judge rightly believed the case of the plaintiff and decreed the suit, as such, the Appeal Suit is liable to be dismissed.
17) The admitted facts are that the plaintiff is the mother of first defendant. PW.4 is one of the daughters of the plaintiff. Plaintiff and her husband were blessed with the first defendant and five daughters. The plaintiff was residing on the alleged date of Ex.A-1 in the suit schedule property. These facts are not in dispute.
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18) Admittedly, the plaintiff sought to declare Ex.A.1 as vitiated by fraud and misrepresentation. The plaintiff pleaded certain circumstances in the plaint as regards the previous animosity between her and the first defendant prior to Ex.A.1 and further on the pretext that her title document regarding purchase of the property was to be computerized, the first defendant and his wife obtained her signatures, thumb marks and photos. So, according to his mother, the property under Ex.A.1 was in her possession as on the date of Ex.A.1. Subsequent to Ex.A.1 only when she was called upon by Sub Inspector of Police, Vizianagaram on the complaint of the first defendant, she came to know about Ex.A.1 and that obtained by fraud and misrepresentation. P.W.1 in her chief examination put forth the facts in tune with the pleadings and P.W.4 got filed her chief examination affidavit in support of the case of the plaintiff.
19) Now, it is appropriate to have a look into the cross examination part of P.W.1 and D.W.1. During cross examination, P.W.1 deposed that though she studied 5th class, but she does not know Telugu. The first defendant is residing in the schedule property and her samans are present in the said house and she is coming from Madras now and then. She came to know about the gift deed after lodging of report by the first defendant. She 17 did not issue any legal notice to the first defendant before filing the suit. She did not file any complaint to the Sub-Registrar about obtaining the gift deed by fraud. No suit was filed against her daughter-in-law for recovery of Rs.12,00,000/- which was credited into her account by obtaining signatures on a false promise on the bank challanas. She denied that till the date of death of her husband, she and her son, who is the first defendant, used to reside in the schedule property. The first defendant executed a settlement deed in her favour for the ground floor in an apartment which is adjacent to the schedule property. The flat was sold away by her in the year 2009 to K. Anuradha for Rs.10,00,000/-. In 2009, she sold away vacant site to P. Jyothi and P. Kishore for Rs.19,00,000/-. She is not having any other property. She and first defendant never lived together. She used to reside at Vizianagaram and the first defendant used to reside at Visakhapatnam only. The amount of her in the banks of Rs.15,00,000/- was transferred to the account of her daughter-in-law. She came to know about the same at a later time. She is alone residing in the house at Vizianagaram. She used to reside at Madras and she used to come to Vizianagaram now and then. The plaint schedule property was constructed by her with her own amount. She denied that out of the income of her husband only, the said 18 house property was purchased. She denied that she voluntarily executed gift settlement deed in favour of her son and there is no fraud or coercion.
20) Turning to the evidence of D.W.1, in cross examination on crucial aspects, he deposed that he is residing at Visakhapatnam since 1995. He is residing presently in a rented house of B. Viswanadham. His Aadhaar card, pan card and driving license all revealed that he is residing at Visakhapatnam. He denied that his mother gave report against him and his sisters also as there are differences. He denied that taking advantage of the innocence and illiteracy of his mother, he and his wife conspired and obtained Ex.A.1 gift deed by taking her to the Sub-Registrar Office on the pretext that her signatures are necessary for computerization of the document, dated 11.01.1983. Ex.B.1 is the copy of the report given by him on 09.03.2013 to Inspector of Police. As per Ex.B.1, his mother gifted Rs.12,00,000/- to him, but in fact it was given to his wife only. He does not know that Ex.X.1-cheque and Ex.X.2-voucher were filled by his wife in her own handwriting. His mother has not filled up blanks in Ex.X.1 and Ex.X.2. All the family members shared the amount and purchased the property in the year 1982. His mother, his father, his elder sister and he contributed the amounts for the purchase of the property. He 19 has no document to show that he gave any amount to his mother at any time. Plaintiff also filed another suit for recovery of Rs.12,00,000/-. He denied that he is deposing false.
21) Though P.W.1 deposed that she did not file any suit with regard to the recovery of Rs.12,00,000/- alleged to be transferred under RTGS in favour of the wife of first defendant, but after her evidence, she filed a suit, which is the subject matter in A.S.No.787 of 2017.
22) As seen from Ex.A.1, the contents are that the plaintiff purchased the vacant site in the year 1983 and after that she constructed a house with her own sources and that the first defendant is no other than her son. She out of love and affection wanted to convey the property in favour of the first defendant and accordingly conveyed the same and delivered possession. As seen from Ex.A.1, contents are that plaintiff is residing in the plaint schedule property. Further things are that the first defendant is the resident of Visakhapatnam. As seen from the evidence of P.W.3, the Sub Inspector of Police, coupled with the receipts issued by the police for the complaints lodged by the plaintiff apprehending some quarrels and disputes from her children, it is clear that the plaintiff was not having good relations with her children in the year 2008 and 2009. Apart from this, there was also a complaint lodged by the first 20 defendant alleging something against the plaintiff as if the plaintiff gifted Rs.12,00,000/- to him and also conveyed the property but she is creating troubles, etc. Apart from this, according to Ex.A.1, plaintiff is resident of Vizianagaram and first defendant is resident of Visakhapatnam. Without there being any basis in the pleadings, the first defendant got suggested to P.W.1 that even during days of her husband, the first defendant used to reside with her and she denied it. On the other hand, during cross examination, D.W.1 admitted that his Aadhaar card, pan card and driving license show that he is resident of Visakhapatnam. Apart from this, according to P.W.1 she has no other house property. So, the contents in Ex.A.1 as if the possession of the property was delivered to the first defendant on the date of Ex.A.1 cannot stand to any reason. It is interesting to note that even as on the date of evidence of D.W.1, he has shown his residential address at Visakhapatnam. He did not show his residential address as in the plaint schedule property. Admissions of P.W.1 mean that her household properties are there in the plaint schedule property and she used to go to Chennai now and then and used to reside. Thus, absolutely, no piece of paper is filed and no clarification is made by the first defendant that how he came into possession of plaint schedule property especially Ex.A.1 rules out delivery of 21 possession as on the date of Ex.A.1 by virtue of the admissions made by D.W.1 in cross examination. Therefore, it is very difficult to accept that Ex.A.1 was acted upon. Apart from this, when there was bad blood flowing between the plaintiff and the first defendant, there is no probability for the plaintiff to execute Ex.A.1 voluntarily.
23) It is to be noted that though it is the evidence of D.W.1 that he used to pay a sum of Rs.20,000/- every month to the plaintiff towards her maintenance it is not at all substantiated in any way.
24) Absolutely, the evidence on record means that the plaintiff is the absolute owner of the plaint schedule property. There is no pleading and proof by the first defendant that what all the properties which were in possession and enjoyment of the plaintiff or are in possession and enjoyment of the plaintiff are the ancestral properties. In such circumstances, the attempt made by D.W.1 that the plaint schedule property belonged to all the members of the family cannot stand to any reason. It only shows the conduct of the first defendant to claim the property of the plaintiff by one way or other.
25) As seen from the admissions made by D.W.1, the plaintiff did not fill up the contents of so-called Ex.X.1-cheque and even did not fill up the contents of so-called RTGS 22 application. D.W.1 categorically admitted in cross examination that the plaintiff did not fill up the contents but he deposed he does not know whether the contents are in the handwriting of the first defendant. Though Ex.X.1 and Ex.X.2 are the subject matter pertaining to O.S.No.99 of 2014 filed by the plaintiff against the first defendant and his wife i.e., daughter-in-law of her which relates to A.S.No.787 of 2017, but the conduct of the first defendant can be inferred by virtue of the above answers spoken by him in cross examination relating to Ex.X.1 and Ex.X.2. The evidence on record adduced by the plaintiff has shown doubtful circumstances about Ex.A.1. The plaintiff branded Ex.A.1 as vitiated by fraud and misrepresentation and in support of the same, she relied upon various probabilities.
26) In fact, it is the first defendant who sought to substantiate his rights over the schedule property under Ex.A.1, which is the gift settlement deed. So, the duty is cast upon the first defendant to prove its due execution. As seen from the evidence of D.W.2, he is not at all an attestor of the document. The contention of the appellant is that the evidence of D.W.2 supports his contention. It is to be noted that during cross examination, D.W.2 deposed that his office is located outside the premises of Sub-Registrar Office. After writing document, he assigned his assistant along with the parties for registration. 23 He sent his assistant for registration. He did not have personal knowledge as to what happened in the Sub-Registrar Office, as he did not go there. He did not remember who attested Ex.A.1. The second attestor Ramesh is his assistant. The above answers spoken by D.W.2 mean that he was not at all present in the Sub-Registrar Office at the time of registration and he has no personal knowledge as to what happened. In my considered view, the evidence of D.W.2 cannot be taken as evidence of an attesting witness. It is interesting to note that one of the attestors is the wife of the first defendant, who is not examined. Another attestor is the assistant of D.W.2, who is not examined. In my considered view, the evidence of D.W.2 is not at all useful to say that the plaintiff executed Ex.A.1 voluntarily. Though the statutory duty is upon the first defendant to examine at-least one attesting witness to prove the due execution of Ex.A.1, but the first defendant failed to do so.
27) To sum up to this extent, the evidence adduced by the plaintiff in support of her case is found convincing. The knowledge of the contents of Ex.A.1 cannot be attributed to P.W.1 on account of various circumstances in her favour. The first defendant miserably failed to prove the execution of Ex.A.1 by examining at-least one attesting witness. Ex.A.1 is a compulsorily attestable document and the person who sought to 24 derive any title is bound to examine one attesting witness to prove the due execution. In the light of the above, I am of the considered view that the first defendant miserably failed to prove the due execution of Ex.A.1. On the other hand, the plaintiff could succeed by relying upon various circumstances that there was no probability for her to execute Ex.A.1 voluntarily.
28) Coming to Section 126 of the Transfer of Property Act, a donor cannot suspend or revoke the gift deed unless there is condition. It is not a case where the plaintiff on her own cancelled Ex.A.1. She duly approached the competent Court of law to declare Ex.A.1 as vitiated fraud and misrepresentation. Hence, the contentions canvassed before the learned Additional District Judge that the plaintiff cannot cancel gift deed under Section 126 of the Transfer of Property Act deserves no merits and it is unsuited to the present situation.
29) Though the second defendant filed his written statement, but from the contents thereof, it appears to be evasive. It is the bounden duty of the second defendant to plead as to how much amount it lent to the first defendant under the so-called mortgage. On the other hand, the second defendant branded the so-called mortgage as a nominal document. The said contention is nothing but evasive. Neither 25 the first defendant nor the second defendant produced any proof regarding the so-called mortgage amount. Except filing of written statement, the second defendant did not contest by stepping into witness box.
30) Having regard to the overall facts and circumstances, I am of the considered view that the plaintiff proved her entitlement before the learned Additional District Judge to declare Ex.A.1 as vitiated by fraud and misrepresentation and I am of the considered view the learned Additional District Judge rightly looked into all the facts and circumstances, probabilities in favour of the plaintiff and improbabilities in favour of defendants and on thorough analyzation of the evidence on record granted a decree of cancellation of Ex.A.1 gift settlement deed as null and void with exemplary costs.
31) Having regard to the above, I am of the considered view that the impugned judgment on the file of the Special Judge for Trial of Cases under SCs & STs (POA) Act-cum- Additional District & Sessions Judge, Vizianagaram, is sustainable under law and facts and I do not find any tenable grounds to interfere with the well reasoned judgment of the Additional District Judge.
26Point No.3:
32) In the result, the Appeal Suit is dismissed with costs confirming the judgment, dated 22.06.2016 in O.S.No.29 of 2013, on the file of Special Judge for Trial of Cases under SCs & STs (POA) Act-cum-Additional District Judge, Vizianagaram.
Consequently, miscellaneous applications pending, if any, shall stand closed.
________________________ JUSTICE A.V. RAVINDRA BABU Dt. 07.10.2023.
PGR 27 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU 12 Appeal Suit No.125 of 2017 Date: 07.10.2023 PGR