Bangalore District Court
Smt.M.Adams Also Known As vs Smt.Betty D'Sylva on 9 December, 2021
IN THE COURT OF LXXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, MAYOHALL UNIT, BANGALURU. (CCH.74)
PRESENT:
Sri.Yamanappa Bammanagi, B.A., LL.B., (Spl.,)
LXXIII Addl.City Civil & Sessions Judge,
Mayohall Unit, Bangaluru.
Dated this the 9th day of December, 2021.
O.S. No.8070/2013
Plaintiff: Smt.M.Adams also known as
Molly Adams,
W/o.Late.Sri.Kenneth Adams,
aged about 80 yrs, (Senior Citizen),
R/at.No.15, D & F Block,
Austin Town, Bangaluru-47.
(By Sri.Joshua Samuel - Adv.)
V/S
Defendants: 1. Smt.Betty D'Sylva,
W/o.Sri.Charles D'Sylva,
aged about 54 yrs,
R/at.No.2, D & F Block,
Austin Town, Bangaluru-47.
2. The Commissioner,
Bruhat Bangaluru
Mahanagara Palike,
N.R.Square, Hudson Circle,
Bangaluru-560001.
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O.S. No.8070/2013
3. The Revenue Officer,
Bruhat Bangaluru
Mahanagara Palike,
Public Utility Building,
M.G.Road, Bangaluru-01.
4. The District Registrar,
Shivajinagar, Kandaya Bhavan,
K.G.Road, Bangaluru-09.
(By Sri.K.M.Jaganath - Adv. for
deft.No.1)
(By Sri.Bathe Gowda K.V. - Adv.
for defts.No.2 & 3)
(By Sri.Suresh - Adv. for
deft.No.4)
Date of Institution of the suit 05.11.2013
Nature of the (Suit or pro-note,
suit for declaration and
DECLARATION & INJUNCTION
possession, suit for injunction,
etc.)
Date of the commencement of
05.09.2017
recording of the Evidence.
Date on which the Judgment was
09.12.2021
pronounced.
Year/s Month/s Day/s
Total duration 08 01 04
(Yamanappa Bammanagi)
73rd Addl. CC & SJ, M.H.Unit,
Bangaluru. (CCH-74)
3
O.S. No.8070/2013
JUDGMENT
The plaintiff has filed this suit for declaration, declaring that the registered gift deed dated 18.7.2009, executed by the plaintiff, in favour of defendant No.1, in respect of suit schedule property, as non-est in the eye of law as same was obtained by the defendant No.1 by playing fraud, without knowledge, without free consent of the plaintiff and by exercising undue influence and false representation. Consequently, cancel the gift deed dated 18.7.2009 as it is null and void. Further, for consequential relief of direction, directing the defendants No.2 and 3 for restoration of the name of the plaintiff in the revenue records, and direction, directing the defendant No.4 to cancel the document dated 18.7.2009 and further direction to the defendant No.1 to hand over all the original documents of title deeds; i.e., sale deed dated 2.8.2002, rectification deed dated 28.12.2002 and registered judgment and decree passed in O.S. No.15170/2003, 4 O.S. No.8070/2013 original revenue records, in respect of suit schedule property.
2. Brief facts of the plaintiff's case:
It is specific case of the plaintiff that, the plaintiff and her sister in law Mrs.N.Devaney, W/o.Late.Mr.G.A.Devaney had purchased the property bearing Municipal No.15, D & F Block, Austin Town, Bangaluru, from Commissioner, BBMP, defendant No.2 herein, under registered sale deed dated 2.8.2002, same was rectified by registered rectification deed dated 28.12.2002. Thereafter, sister in law of plaintiff Mrs.N.Devaney had filed suit against the present plaintiff in O.S. No.15170/2003, for partition and separate possession of her half share in respect of property bearing Municipal No.15, jointly purchased by the present plaintiff and said Mrs.N.Devaney, said suit was ended in compromise, as per compromise decree Southern portion of the property measuring 868 sq. ft., fallen to the plaintiff's sister in law Mrs.N.Devaney and Northern portion of the 5 O.S. No.8070/2013 property measuring 868 sq.ft. fallen to the share of the plaintiff, said compromise decree was registered before the competent authority.
The share of the plaintiff retained its No.15 and portion fallen to the share of plaintiff's sister in law was assigned Municipal No.15/1. The share of the plaintiff bearing No.15 is the suit schedule property herein. Thereafter, the revenue records have been changed in the name of plaintiff in respect of her share and plaintiff was residing in the said property for the last 80 years.
It is also case of the plaintiff that she was served as a Teacher for 46 years, prior to that the plaintiff was served in home school at Basavanagudi, Bangaluru, plaintiff is getting pension and her husband was also having pension benefits during his lifetime.
The defendant No.1 is residing at property bearing No.2, D & F Block, Austin Town, Bangaluru, which is situated on Eastern side of the suit property and there is 6 O.S. No.8070/2013 common wall dividing the suit property and first defendant's property, in which iron gate has been fixed between two premises. Since husband and son of defendant No.1 are permanent resident of Perth in Australia, hence defendant No.1 stays in Perth, Australia for long time.
Such being the fact, in the year 2009, the plaintiff's husband was ill seriously and on 10.7.2009, he was admitted in Church of South Indian Hospital, Cantonment, Bangaluru, for treatment for a period from 10.7.2009 till 18.9.2009. When the husband of the plaintiff was in hospital, the defendant No.1 had approached the plaintiff and informed her that, the plaintiff needs to sign on some papers for hospital purpose, believing the words of the defendant No.1 and trusting her the plaintiff has signed various papers, which were given by the defendant No.1, without verifying, without reading the documents as the plaintiff was not in right frame of mind. Thereafter, the 7 O.S. No.8070/2013 plaintiff's husband passed away on 18.9.2009, due to death of her husband the plaintiff was under depress.
Thereafter, one Mrs.Jillian Nayar Nee D'Cruz had sent a letter of invitation dated 22.2.2010 to Australian High Commissioner, New Delhi, for issuance of visa to the plaintiff. At that time, defendant No.1 and her sister Ms.Karen June Marcar requested the plaintiff for original documents of suit property to produce the same before the competent authority for issuing visa to the plaintiff. However, the plaintiff could not travel to Australia as the Australian Govt. had not granted visa to the plaintiff, but the defendant No.1 did not returned original documents to the plaintiff. After death of her husband, the plaintiff living lonely, which has had an adverse impact on the plaintiff. After death of plaintiff's husband, the defendant No.1 returned from Australia in and around 3rd week of August 2013. Further the plaintiff contended in the plaint that, ever since the defendant No.1 came down from Australia, 8 O.S. No.8070/2013 she has started to pressurizing the plaintiff, stating that she wants to demolish the suit property and redevelop the same and tried to frightened the plaintiff stating that, strangers might enter through toilet roof and physically assault the plaintiff and the plaintiff asked her friends stating that, defendant No.1 is trying to deal with the suit property, at that time, her friends had advised the plaintiff to keep original documents in safe custody. Thereafter, the plaintiff had reminded herself that, original documents of suit property were handed over to the defendant No.1 and her sister for having visa.
Further, plaintiff's case is that, after death of her husband, the plaintiff has not paid property tax in respect of suit property, hence the plaintiff had approached the defendant No.3 on 17.10.2013, for payment of tax in respect of suit property, at that time, defendant No.3 had informed the plaintiff that suit property was transferred in the name of defendant No.1 by virtue of gift deed dated 9 O.S. No.8070/2013 18.7.2009, thereafter, the plaintiff thought that in the month of July 2009, her husband was in hospital for treatment and she has not executed any gift deed much less the gift deed dated 18.7.2009, it is for the defendant No.1 who has obtained signature of plaintiff on many papers and plaintiff has signed on many papers without reading the same.
Further it is case of the plaintiff that when defendant No.3 informed on 17.10.2013 that suit property was transferred in the name of the defendant No.1, at that time, the plaintiff came to know that it is for the defendant No.1 who has obtained gift deed dated 18.7.2009, from the plaintiff without her knowledge, free consent and by exercising undue influence and falsely representing the papers on which the plaintiff has signed when her husband was in hospital.
The plaintiff has not executed gift deed in favour of the defendant No.1, in respect of suit schedule property, 10 O.S. No.8070/2013 out of love and affection, the plaintiff never intended to gift the suit property to the defendant No.1, the defendant No.1 has fraudulently obtained the gift deed from the plaintiff.
The plaintiff further contended that there is a main gate and inner gate in the suit property, dividing the suit property and property belongs to defendant No.1, the main gate and inner gate locked by the plaintiff for safety and security and defendant No.1 could access the suit property through iron gate, when the first defendant threatened to demolish the suit property on 17.10.2013, at that time, the plaintiff came to know that defendant No.1 has obtained gift deed fraudulently.
On 23.10.2013, when defendant No.1 removed iron gate with some anti social elements, at that time, plaintiff has approached jurisdictional police, but police had advised the plaintiff to approach civil court. Thereafter, the defendant No.1 threatened the plaintiff with dire consequences and claiming that suit property is belongs to 11 O.S. No.8070/2013 her, hence the plaintiff had approached the Commissioner of Police for protection, the Commissioner of Police has directed the jurisdictional police authority to protect and provide protection to the plaintiff. With these facts, the plaintiff prayed for decree the suit.
3. On the other hand, the defendant No.1 appeared through counsel and filed written statement. Though defendants No.2 to 4 appeared through counsel, but did not filed written statement and did not contested the suit. The defendant No.1 is the daughter of plaintiff's sister, defendant No.2 is vendor of the plaintiff and defendant No.3 is revenue officer who has revenue jurisdiction over the suit schedule property and defendant No.4 is the registering authority within whose jurisdiction the plaintiffs property is situated.
The defendant No.1 has filed her written statement stating that, the suit of the plaintiff is baseless, fraudulent, malicious, vexatious, speculative and is product of sinister 12 O.S. No.8070/2013 and oblique motive, which amounts to abuse of process of court, hence not maintainable and liable to be dismissed. Further the suit valued and court fee paid is not court correct, suit is barred by law of limitation, bad for non- joinder of proper and necessary party and also barred by the provisions of Section 10 of CPC. The plaintiff did not complied with provisions of Section 80 of CPC and Section 482 (2) of the K.M.C. Act, 1976, hence suit is liable to be dismissed.
Further contended in written statement that, plaintiff is not absolute owner and in possession of the suit property. The plaintiff is in permissive occupation of the suit property after gift deed dated 18.7.2009, executed by the plaintiff, in favour of the defendant No.1, in respect of suit property. With this, the defendant No.1 has denied the ownership and possession of the suit property and denied entire case of the plaintiff except those which are specifically admitted as true.
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O.S. No.8070/2013 The defendant No.1 has specifically denied contents of para-8 of the plaint as fabricated and concocted except the fact that the plaintiff's husband was admitted in Church of South Indian Hospital, Cantonment, Bangaluru. However, ailment of spouse of the plaintiff was not serious, no signature of the plaintiff on any paper taken by the defendant No.1, by playing fraud, misrepresentation. The defendant No.1 has specifically denied para-9, and contended that the plaintiff might be invited to Australia and made attempt to obtain visa. Further defendant No.1 denied para-18 of the plaint as false, after denial of para- 18 of the plaint, the defendant No.1 has contended that plaintiff is second wife of Kenneth Adams and married him very lately. With this, the defendant No.1 has denied the fact that the fact of death of her husband had adverse impact on her. The plaintiff is merry widow living a happy and contended life solely due to the concerns for her in this 14 O.S. No.8070/2013 regard of the defendant No.1 and her biological sister Karen Marcar.
Further defendant No.1 has specifically denied the contents of para-11 to 14 of the plaint as false, by denying para-11 to 14 of the plaint, the defendant No.1 has contended that the plaintiff has executed gift deed dated 18.7.2009 in her favour, in respect of suit schedule property with love and affection, with free will and handed over possession of the suit property to the defendant No.1, same was accepted by the defendant No.1. The defendant No.1 has contended in the written statement, so far as para-15 to 17 of the plaint is concerned, that the gate referred in the plaint was removed several years back to enable interaction between the plaintiff, first defendant, her sister and the family members. But, now the plaintiff had installed a lock on the said gate to prevent access to the suit schedule property by the defendant No.1 from the other side of the property. Thus, the defendant No.1 has 15 O.S. No.8070/2013 denied para-15 to 20 of the plaint and contended that the plaintiff is not entitled for any reliefs sought in the plaint as there is no cause of action to file this suit. Hence, suit is liable to be dismissed.
It is specific case of the defendant No.1 that ever since her childhood, the defendant No.1 has been closely associated with plaintiff who is her immediate neighbour and relative. The defendant No.1 and her family associated with plaintiff even when the plaintiff married with elderly person. The plaintiff and her husband run up several debts on account of being stressed for funds and the plaintiff and her deceased spouse had always indicated that the suit property would be conveyed to the first defendant or her sister and also predicated that their debts should be discharged by them. Thus, the plaintiff is not entitled for the reliefs sought in the plaint and suit filed by the plaintiff is liable to be dismissed.
4. Initially this suit is filed before the CCH-29, in view of the Notification No.ADM-I(A)413/2018, dated 31.7.2018, this case has been transferred to this court as 16 O.S. No.8070/2013 per order dated 27.8.2018 from CCH-29. And suit was called out in this court for the first time on 28.8.2018.
As per the order of Hon'ble High Court, this case is clubbed with O.S. No.26697/2013 and evidence recorded in this case.
5. On basis of the pleadings of the parties, my learned Predecessor has framed the following:-
ISSUES
1. Whether plaintiff proves that the gift deed dt:
18.7.2009 is null and void and not binding on the plaintiff?
2. Whether the plaintiff proves that he is the absolute owner and possession of the suit schedule property?
3. Whether the plaintiff proves that the defendants have illegally got transferred their name in revenue records by deleting the name of the plaintiff?
4. Whether the plaintiff proves that the original documents 17 O.S. No.8070/2013 i.e., sale deed dt: 2.8.2002 rectification deed dt:
28.12.2002 and other documents as contended in the plaint in respect of B schedule property or in the possession of defendant No.1?
5. Whether plaintiff is entitled for relief of declaration as prayed in the plaint?
6. Whether the plaintiff is entitled for the relief of direction against the 4th defendant as prayed in the plaint?
7. Whether plaintiff is entitled for the relief of direction against the defendant No.2 and 3 as prayed in the plaint?
8. Whether the plaintiff is entitled for the relief of cancellation of gift deed as prayed in the plaint?
9. Whether the plaintiff proves that the defendants are illegally interfering in the peaceful possession and enjoyment of suit schedule property of the plaintiff?18
O.S. No.8070/2013
10. Whether the plaintiff is entitled for the relief of permanent injunction as prayed in the plaint?
11. What order or decree?
6. In order to prove her case, the plaintiff is examined as P.W.1 and got marked Ex.P.1 to P.25 and P.W.1 was cross-examined by the learned counsel for the defendant No.1. The defendant No.1 is examined as D.W.1 and got marked Ex.D.1 to D.7 and D.W.1 was cross-examined by the learned counsel for the plaintiff.
7. Heard argument on both side. In support of his argument, the learned counsel for the plaintiff relied on the decision reported in
1. 1946 OWN 283 (1946 SCC Online CC 62) in case of Ram Kalap Pande v/s Bansi Dhar and another.
2. 1994 (1) SCC 1 in case of S.P.Chengalvaraya Naidu 19 O.S. No.8070/2013 (Dead) by LRS v/s Jagannath (Dead) by LRs and others.
3. Civil Appeal No.5717 of 2021 in case of Sonamati Devi & others v/s Mahendra Vishwakarma & others.
4. 2010 SCC Online KAR 329 (2010) 3 AIR KANT R 780 in case of B.C.Ravindra & another v/s Deviramma.
5. 2010-2-L.W.342 in case of K.Thangappa Pillai and another v/s Arulmighu Srinivassa Devasthanam.
8. In support of his argument, the learned counsel for the defendant No.1 relied on the decision reported in AIR 2005 Kant 426, 2006 (3) KarLJ 177 in case of Ranganayakamma v/s K.S.Prakash.
9. I have appreciated oral and documentary evidence led by both plaintiff and defendant No.1 and material placed before the court and considered the argument of the learned counsel for the parties. 20
O.S. No.8070/2013
10. My answer to the above issues are as follows:-
Issue No.1: In the Negative, Issue No.2: In the Negative, Issue No.3: In the Negative, Issue No.4: In the Negative, Issue No.5: In the Negative, Issue No.6: In the Negative, Issue No.7: In the Negative, Issue No.8: In the Negative, Issue No.9: In the Negative, Issue No.10: In the Negative, Issue No.11: As per the final order, for the following:-
REASONS
11. ISSUE No.1, 2 & 4: All these three issues are interconnected to each other, in order to avoid repetition, I proposed to answer all these three issues commonly. In order to prove her case the plaintiff is examined as P.W.1 21 O.S. No.8070/2013 and got marked Ex.P.1 to P.25. P.W.1 is examined by filing affidavit in lieu of examination in chief, reiterating the averments of the plaint. P.W.1 deposed before the court that, she is the absolute owner and in possession of the suit schedule property by virtue of registered sale deed dated 2.8.2002, registered rectification deed dated 28.12.2002 and by virtue of compromise decree passed in O.S. No.15170/2003 and she is in possession and enjoyment of the suit property since her birth. The first defendant is residing in property bearing No.2, D & F Block, Austin Town, Bangaluru, which is situated on the Eastern side of the plaintiff's property and there is a common wall dividing the suit schedule property and the property owned by the defendant No.1 and the plaintiff was initially serving in Hindustan Aeronautics Ltd. (HAL), Bangaluru, as a Supervisor and thereafter, the plaintiff was served as a Teacher in a Ramakrishna School at Ulsoor, 22 O.S. No.8070/2013 Bangaluru for 46 years. Even after retirement the plaintiff was served as a Teacher in home school.
12. P.W.1 further deposed that, in the year 2009 the plaintiff's husband was seriously ill and admitted in the hospital Church of South India Hospital, Cantonment, Bangaluru, on 10.7.2009. The plaintiff's husband was under treatment in the hospital from 10.7.2009 till 18.9.2009, he was under ICU and on 18.09.2009, the plaintiff's husband passed away in the hospital. P.W.1 deposed further before the court that when plaintiff's husband was under treatment in the hospital, at that time, defendant No.1 had approached the plaintiff and asked for signature on some documents stating that the signature on the documents are required for hospital purpose, trusting and believing the words of the 1st defendant, the plaintiff has signed on various papers given by the 1 st defendant without verifying and without reading the documents since 23 O.S. No.8070/2013 she was not in the right frame of mind. After death of her husband, the plaintiff was under depressed.
13. Further P.W.1 deposed before the court that on 22.2.2010 one Mrs.Jillian Nayar Nee D'Cruza had sent invitation to the Australian High Commission, New Delhi, for issuance of visa to the plaintiff to go to Australia, defendant No.1 and her sister Ms.Karen June Marcar requested the plaintiff for original document of suit property for production of the same before the competent authority for issuing visa to plaintiff and thereafter, the Australian Govt. had not issued visa, but defendant No.1 did not returned original title deeds of suit schedule property to the plaintiff.
14. The defendant No.1 returned from Australia in and around the third week of August 2013 and started to pressurize the plaintiff to demolish the suit property for redevelopment, but plaintiff asked the defendant No.1 as to why the defendant No.1 intended to deal with the suit 24 O.S. No.8070/2013 property, at that time, the defendant No.1 told that the strangers might enter through the toilet roof and physically assault the plaintiff and as such, thus, the defendant No.1 frightened the plaintiff. The plaintiff had brought this fact before her friend and told to her friend that defendant No.1 trying to deal with the suit property, at that time, the plaintiff was advised to keep original title documents and revenue documents in safe custody.
15. On the advise of her friend the plaintiff searched for original documents of the suit property and then reminded herself that defendant No.1 had taken signature of the plaintiff on documents and plaintiff had put her signature on the documents without verifying and without reading the contents of documents, because plaintiff's husband was under treatment in the hospital. Thus, the defendant No.1 has fraudulently got gift deed dated 18.7.2009, in her favour, in respect of suit schedule property by playing fraud, undue influence and 25 O.S. No.8070/2013 misrepresenting. With this, P.W.1 deposed that she has not gifted the suit property to the defendant No.1 with free consent, out of love and affection as alleged in the gift deed. Further P.W.1 deposed that she was not intended to gift the suit schedule property neither to defendant No.1 nor anybody as the suit property is the only property for her shelter and defendant No.1 obtained gift deed by playing fraud, misrepresentation and undue influence, which is not binding on the plaintiff. With this, the plaintiff prayed for decree the suit.
16. In support of oral evidence, the plaintiff has produced as many as 25 documents, which have been marked at Ex.P.1 to P.25. Ex.P.1 is the certified copy of sale deed dated 2.8.2002, under which plaintiff and her sister in law had purchased jointly property bearing No.15, Ex.P.2 is the certified copy of rectification deed dated 28.12.2002, Ex.P.3 is the certified copy of final decree in O.S. No.15170/2003, Ex.P.4 is the certified copy of gift 26 O.S. No.8070/2013 deed dated 18.7.2009, executed by plaintiff in favour of the defendant No.1 in respect of suit schedule property, Ex.P.5 is the certified copy of khatha certificate dated 16.7.2009, which stands in the name of plaintiff, Ex.P.6 is the khatha extract dated 16.7.2009 stands in the name of plaintiff in respect of suit property, Ex.P.7 is the medical certificate of death issued by the Church of South Indian Hospital, Bangaluru, showing the cause of death of deceased husband of the plaintiff, Ex.P.8 is the death certificate of plaintiff's husband, Ex.P.9 is the registration of khatha, Ex.P.10 is the burial permitted receipt, Ex.P.11 is the TT service letter, Ex.P.12, 12 (a) to (h) are the photos, Ex.P.13 is the CD, Ex.P.14 is the photo receipt, Ex.P.15 is the letter issued by the Australian Govt. to the plaintiff on 13.3.2010, Ex.P.16 is the encumbrance certificate for the period from 1.4.2000 to 31.3.2004, Ex.P.17 is the EC for the period from 1.4.2004 to 19.9.2013, Ex.P.18 are the four tax-paid receipts, Ex.P.19 is the complaint lodged by 27 O.S. No.8070/2013 the defendant No.1 before the Commissioner of Police, Infantry Road, Bangaluru, Ex.P.20 is the certified copy of plaint in O.S. No.25568/2016 filed by the defendant No.1 through her GPA holder against her sister Miss.Karen June Marcar, Ex.P.21 is the certified copy of written statement filed in O.S. No.25568/2016 by plaintiff's sister, who is defendant in the said suit, Ex.P.22 is the certified copy of partition deed between brothers and sisters, Ex.P.23 is the certified copy of sale deed dated 1.8.2014, Ex.P.24 is the deed of cancellation dated 26.11.2013 and Ex.P.25 is the rectification deed.
17. On the other hand, defendant No.1 is examined as D.W.1 by filing affidavit in lieu of examination in chief reiterating the averments of written statement filed by her and produced 8 documents, which have been marked at Ex.D.1, D.1 (a) to D.7. D.W.1 deposed before the court that, the suit of the plaintiff is baseless, fraudulent, malicious, vexatious, speculative and is product of sinister 28 O.S. No.8070/2013 and oblique motive, which amounts to abuse of process of court, hence not maintainable and liable to be dismissed. Further the suit valued and court fee paid is not court correct, suit is barred by law of limitation, bad for non- joinder of proper and necessary party and also barred by the provisions of Section 10 of CPC; the plaintiff did not complied with provisions of Section 80 of CPC and Section 482 (2) of the K.M.C. Act, 1976, hence suit is liable to be dismissed.
18. Further D.W.1 deposed that, plaintiff is not absolute owner and in possession of the suit property. The plaintiff is in permissive occupation of the suit property after gift deed dated 18.7.2009, executed by the plaintiff in favour of the defendant No.1, in respect of suit property. With this, the defendant No.1 has denied the ownership and possession of the suit property and denied entire case of the plaintiff.
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O.S. No.8070/2013
19. Further D.W.1 deposed that since her childhood, she has been closely associated with plaintiff who is her immediate neighbour and relative. D.W.1 and her family associated with plaintiff even when the plaintiff married with elderly person. The plaintiff and her husband run up several debts on account of being stressed for funds and the plaintiff and her deceased spouse had always indicated that the suit property would be conveyed to her or her sister and also predicated that their debts should be discharged by them. Thus, the plaintiff is not entitled for the reliefs sought in the plaint and suit filed by the plaintiff is liable to be dismissed.
20. In support of oral evidence, the defendant No.1 has produced 8 documents, which have been marked at Ex.D.1, D.1 (a) to D.7. Ex.D.1 is the notarized Will and testament, executed by plaintiff, Ex.D.1 (a) is the original deed of absolute gift dated 18.7.2009, executed by the plaintiff, in respect of suit schedule property, Ex.D.2 is the 30 O.S. No.8070/2013 receipt for having payment of khatha transfer fee, Ex.D.3 is the khatha endorsement dated 27.11.2009, Ex.D.4 is the khatha certificate dated 1.12.2009 stands in the name of defendant No.1 in respect of suit schedule property, Ex.D.5 is the khatha extract dated 11.7.2019 stands in the name of defendant No.1 in respect of suit schedule property, Ex.D.6 is the khatha extract dated 11.7.2019 stands in the name of defendant No.1 and Ex.D.7 is the tax-paid receipt paid by the defendant No.1 in respect of suit schedule property for the year 2019-20.
21. I have perused plaint, written statement, oral and documentary evidence led by the parties carefully. On perusal of the same, it is clear that the ownership of the plaintiff over the suit schedule property at the time of execution of Ex.P.4 is not in dispute and it is also not in dispute that the defendant No.1 is daughter of plaintiff's sister. It is specific case of the plaintiff that, when her husband was under treatment, at that time, the defendant 31 O.S. No.8070/2013 No.1 used to take signature of the plaintiff on documents and plaintiff signed the document without verifying and without reading the documents and thereby the defendant No.1 got gift deed dated 18.7.2009, in respect of suit schedule property by playing fraud, undue influence, misrepresentation and on basis of which, the defendant No.1 started to request the plaintiff to deal with the suit property.
22. When defendant No.1 started to request the plaintiff to deal with the suit property, at that time, the plaintiff has questioned the defendant No.1 as to why the defendant No.1 is dealing with the suit property, when suit property is belongs to plaintiff, at that time, defendant No.1 told that the strangers may enter through toilet roof and physically assault the plaintiff.
23. This fact was brought by the plaintiff before her friends and plaintiff's friends advised her to keep original title documents and revenue documents in safe custody. At 32 O.S. No.8070/2013 the advise of her friend, the plaintiff searched for the documents and reminded herself that defendant No.1 was used to take signature of the plaintiff on documents and plaintiff was signed on the documents without reading the contents of the documents believing the defendant No.1, when plaintiff's husband was in hospital for treatment.
24. Thus, the plaintiff realized that the defendant No.1 got gift deed, dated 18.7.2009, in respect of suit schedule property. This is the pleading pleaded in the plaint through which, according to plaintiff, the defendant No.1 has played fraud, misrepresentation and undue influence and got Ex.P.4.
25. I have gone through the entire plaint and found four events in the plaint, which are as follows:
First event, at para-8 of the plaint that plaintiff's husband was seriously ill, was admitted in Church of South India Hospital, Cantonment, Bangaluru, from 10.7.2009 till 18.9.2009. When plaintiff's husband was in hospital, at that time, the defendant No.1 had 33 O.S. No.8070/2013 approached the plaintiff and informed the plaintiff that plaintiff need to affix signature on some paper, and took the plaintiff's signature on some paper, stating that, said papers are required for hospital purpose and plaintiff without going through contents of document, believing and trusting the defendant No.1. The plaintiff signed the papers without verifying and reading the contents of document as she was not in the right frame of mind, since her husband was under
treatment. This is the pleading in the plaint in respect of fraud, undue influence and misrepresentation.
Second event, in para-9 of the plaint, the plaintiff pleaded in para-9 that one Mrs.Jillian Nayar Nee D'Cruza had invited the plaintiff on 22.2.2010 to Australia and to obtain visa, the defendant No.1 and her sister Miss.Karen June Marcar had requested the plaintiff for original documents of suit property to produce before the competent authority to obtain plaintiff's visa to go to Australia. However, the Australian Govt. had not granted visa to the plaintiff, but, defendant No.1 did not returned original documents of the suit property to the plaintiff.34
O.S. No.8070/2013 Third event is that, since 1 st defendant's husband and son are residing in Australia, hence she stays in Australia for long terms. As such, the defendant No.1 returned from Australia around 3 rd week of August 2013 and started to pressurizing the plaintiff, stating that the defendant No.1 wants to demolish the suit property and redevelop the same, at that time, plaintiff had questioned the defendant No.1 as to why the defendant No.1 dealing with suit property, because suit property was belongs to the plaintiff. When plaintiff questioned the defendant No.1, at that time, the defendant No.1 told and tried to frightened the plaintiff, stating that the strangers might enter through the toilet roof and physically assault the plaintiff. Thereafter, the plaintiff informed this fact to her friend and plaintiff was advised by her friend to keep original documents of suit property in safe custody, the plaintiff started to search for the original documents of suit property and recalled her mind that defendant No.1 had taken signature of plaintiff on documents when plaintiff's husband was in hospital for treatment and plaintiff had signed the documents without verifying and without reading the contents of the 35 O.S. No.8070/2013 documents. Thereafter, the defendant No.1 did not returned the documents to the plaintiff.
Fourth event, since, after death of plaintiff's husband the plaintiff had not paid tax in respect of suit schedule property, hence, plaintiff had approached third defendant on 17.10.2013 for payment of property tax, at that time, the defendant No.3 informed the plaintiff that suit property was transferred to the defendant No.1 through gift deed dated 18.7.2009.
26. In this manner, the defendant No.1 has obtained gift deed, dated 18.7.2009, by playing fraud, misrepresentation and undue influence and transferred all revenue records in the name of defendant No.1. The remaining facts in the plaint are general allegation against the defendant No.1. Except first event the remaining events are subsequent to the document Ex.P.4, which is according to the plaintiff, the defendant No.1 has played fraud, undue influence and misrepresentation while obtaining the Ex.P.4 Gift Deed dated 18.7.2009 36 O.S. No.8070/2013
27. Now I have appreciated Ex.P.4 Gift Deed dated 18.7.2009 executed by the plaintiff in favour of defendant No.1 in respect of suit schedule property. On perusal of the same, it is clear that Ex.P.4 came into existence on 18.7.2009, which bears signature of plaintiff and defendant No.1 on each page.
28. I have perused the evidence of plaintiff, she has deposed before the court that she was served as a Teacher for the last 46 years and also it is clear that the plaintiff is a well educated and knowledge woman and well aware the consequences of her act.
29. The question before the court is as to whether mere admission of her husband in hospital for treatment is sufficient to hold that the plaintiff was not in a position to verify the contents of documents before signing the same. On careful scrutiny of Ex.P.4 Gift Deed, dated 18.07.2009, I found that, the plaintiff and the defendant No.1 have put their signature on each page in such manner no prudent 37 O.S. No.8070/2013 man could say that the person who signed on Ex.P.4 had put their signature without reading and without verification of the contents of documents, that too, by retired Teacher having service of 46 years, having rich experience and knowledge about the language in which document was written.
30. That apart, it is the case of the plaintiff that, the defendant No.1 had taken plaintiff's signature on many papers and the plaintiff had put her signature on documents without reading the contents, since her husband was under treatment and believing the word of the defendant No.1. The plaintiff's husband was admitted in the hospital on 10.7.2009 till 18.9.2009, nearly two months and 8 days, on 9th day he passed away as it could be seen from Ex.P.7 Medical Certificate.
31. The gift deed was executed on 18.7.2009, after 8 days of admission of the plaintiff's husband in the hospital. According to plaintiff, since the defendant No.1 has taken 38 O.S. No.8070/2013 plaintiff's signature on papers, when her husband was under treatment in the hospital, hence, she was not able to verify and read the contents of documents before putting her signature. The said documents must have signed by the plaintiff either in the house of plaintiff or in the hospital, because there is no pleading in the plaint that plaintiff had signed the document in the hospital or in her house. Only pleading in the plaint is that the defendant No.1 has taken signature of the plaintiff on documents when her husband was in hospital.
32. That apart, the P.W.1 has categorically stated in the cross-examination dated 12.12.2019, at page-14, after two lines from top, which reads thus:
"My husband was 83 years old, when he died. My husband was suffering from Diabetes, heart problems, high blood pressure, broken depth, facial stroke, clot in the brain, from many years prior to his death. He is getting 39 O.S. No.8070/2013 ill frequently. My husband had facial stroke late 2008, at that time, blood clot was came to know. Prior to 10.7.2009 my husband was St.Philomena's, then he was shifted to St.CSI Hospital at Bangaluru. During 10.7.2009 to 18.9.2009 my husband was suffering from age related ailments. (wrongly typed as elements instead of ailments).
He was admitted in Geriatric
Ward."
33. On appreciation of evidence of the plaintiff extracted supra along with Ex.P.7 Medical Certificate, it is clear that, plaintiff's husband died at the age of 84 years. It is also clear from the deposition of the plaintiff extracted supra that due to old age he was suffering from age related ailments, he was getting ill frequently, was used to take treatment as indoor and outdoor patient as admitted by the P.W.1 in cross-examination dated 2.1.2020, in 40 O.S. No.8070/2013 St.Philomena's Hospital, Bangaluru, prior to 10.7.2009; i.e., prior to many years of his death.
34. When plaintiff herself admitted that her husband used to take treatment frequently from many years as indoor and outdoor patient prior to 10.7.2019, since many years, for his age related ailments, then it is not first event in which the plaintiff's husband got admitted in the hospital for the first time which caused mental shock, due to which the plaintiff was not able to understand what she is doing.
35. Now it is relevant to extract the cross- examination of P.W.1 dated 02.01.2020, first para, last two line, which reads thus:
"Whenever my husband was in hospital, younger sister of 1 st defendant used to sign on the hospital documents."
36. On careful appreciation of evidence of plaintiff extracted supra, it is clear that at no point of time plaintiff 41 O.S. No.8070/2013 had signed on hospital documents, whenever her husband was in hospital. So, from the evidence of plaintiff itself it is clear that she has never signed on hospital documents. Then it is clear from the evidence of plaintiff itself that the plaintiff has not approached the court with clean hands and filed this suit suppressing the material facts.
37. Another circumstance, which creates doubt about the case of the plaintiff, the plaintiff was not in a position to verify and read the contents of documents before affixing her signature, because of her husband was in hospital for treatment. If, that is the case, what forced the plaintiff to go to Sub-Registrar Office, involved herself in lengthy procedure of registration of title deeds, because, for registration of any document in Sub-Registration Office there is procedure of scanning the photo, signature and thumb mark and scanning vision (eye sights) of the parties to the documents. The plaintiff had underwent such a lengthy procedure as it could be seen from the Gift Deed 42 O.S. No.8070/2013 Ex.P.4. Further there is no pleading in the plaint, who took the plaintiff to the Sub-Registrar Office. If really, the plaintiff was under such shock due to ill health of her husband, she would not have underwent to register Ex.P.4 by adopting such lengthy procedure. No prudent man could believe the evidence of plaintiff to the effect that she did not know the contents of Ex.P.4, after going through such a procedure for registration of document, that too, the plaintiff being a Teacher of having rich experience of 46 years service and having good language in which Ex.P.4 was written.
38. Ofcourse, assuming for a moment, if the case of the plaintiff is that, the plaintiff's husband suddenly fell ill for the first time and got admitted in the hospital, the plaintiff, under sudden moment of time, was under need of money for her husband's medical expenses, so, she was forced to go to Sub-Registered Office to sell her property for consideration in order to save the life of her husband and 43 O.S. No.8070/2013 executed sale deed for consideration, then the appreciation of evidence would be different. But, in the case on hand, it is clear from the evidence of plaintiff and facts stated in the plaint extracted supra that the husband of the plaintiff used to take treatment for age related ailments from many years. Under such circumstances, no prudent man could disbelieve the case of the defendant No.1 that plaintiff has executed Ex.P.4 with a free will, without any fraud, undue influence and misrepresentation, which is out come of love and affection.
In the case on hand, the plaintiff has gone to Sub- Registration to execute the gift deed and again says that she was not able to understand the consequences of her act as her husband was admitted in hospital. Looking to the facts and circumstances of the case, no one can believe the version of the plaintiff.
39. Another important circumstances involved in the suit is, according to plaintiff, the original title deed and 44 O.S. No.8070/2013 original revenue records of suit property were handed over to the defendant No.1 on 22.2.2010 to produce the same before authority to obtain visa for the plaintiff. From the above fact, it is clear that till 22.2.2010, original title deed and revenue records were with the plaintiff.
40. Now question before the court is that, is it possible for the defendant No.1 to get register Gift Deed Ex.P.4 without producing original title deeds and revenue records and other relevant documents by the plaintiff before the Sub-Registrar on 18.07.2009 to transfer suit property in the name of defendant No.1 by way of registered gift deed.
41. So, it is not possible to transfer title through registered deeds without producing original title, revenue and other relevant documents before the Sub-Registrar. So, it is clear that, on 18.07.2009, the plaintiff has produced title deed and original revenue records of suit property before the Sub-Registrar at the time of registration of 45 O.S. No.8070/2013 Ex.P.4, and after registration of Gift Deed Ex.P.4 all original documents of suit property handed over to the defendant No.1 after registration procedure was completed.
42. At another circumstance, the plaintiff had made out in the plaint, and there was much reply argument on both side. It is the argument of the learned counsel for the defendant No.1 that, the plaintiff has executed Ex.P.4 on 18.7.2009, in favour of the defendant No.1, in respect of suit property and transferred suit schedule property to the defendant No.1 through registered gift deed, hence, the plaintiff has not paid property tax from 2009 to 2013. On the other hand, the learned counsel for plaintiff argued that, after death of her husband on 18.9.2009 the plaintiff was under depress, hence the plaintiff has not paid property tax from 2009 to 2013. So, it is clear from the case of the plaintiff that plaintiff was under depressed due to death of her husband for near four years, hence she could not paid property tax till 2013, on 17.10.2020 the 46 O.S. No.8070/2013 plaintiff had approached defendant No.3 for payment of property tax and defendant No.3 informed the plaintiff that suit property has already transferred in the name of defendant No.1 under registered gift deed dated 18.7.2009 as it could be seen from para-12 of the plaint and P.W.1 is also deposed in the cross-examination dated 2.1.2020, page-16, after four lines from top, which reads thus:
"I did not paid tax in respect of suit property from 2009 to 2013, since I was depressed due to death of my husband."
43. Now it is relevant to note here the facts stated in para-9 of the plaint. The plaintiff has stated in the plaint at para-9 that plaintiff's grand niece one Mrs.Jillian Nayar Nee D'Cruz had sent letter of invitation on 22.2.2010 to the plaintiff to come to Australia, the plaintiff had applied for visa to go to Australia. Ofcourse, it was rejected as it could be seen from Ex.P.11. The question before the court is as 47 O.S. No.8070/2013 to whether the plaintiff was under depress from 18.09.2009 to 17.10.2013, for near 4 years from the date of death of her husband, due to death of her husband and on account of which, she had not paid property tax in respect of suit schedule property. If really, the plaintiff was under depress due to death of her husband from 18.09.2009 to 17.10.2013, then plaintiff could not made any attempt to go to Australia on 22.2.2010, because, no depressed woman, due to death of her husband, would ready to take journey from one country to another country, if really she was under depressed. The conduct of the plaintiff shows uncommon. So, the argument of the learned counsel for plaintiff that after demise of her husband, the plaintiff has not paid property tax from 18.09.2009 to 17.10.2013 for near 4 years holds no good.
44. Now the question before the court is as to whether from the above pleading and evidence, as discussed supra, are sufficient to hold that the defendant 48 O.S. No.8070/2013 No.1 had obtained Ex.P.4 from the plaintiff by playing fraud, misrepresentation, undue influence and without free will.
45. Undue influence is defined u/S 16 of the Indian Contract Act, which reads thus:
"Undue influence" defined-
(1) A Contract is said to be induced by "undue influence"
where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.
(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another
(a) Where he holds a real of apparent authority over the other, or where the stands in a fiduciary relation to the other;or 49 O.S. No.8070/2013
(b) Where he makes a contract with a person whose mental capacity is temporarily or permanently affected reason of age, illness, or mental or bodily distress.
(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduce, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other.
Nothing in this sub-section shall affect the provisions of section 111 of the Indian Evidence Act, 1872 (1 of 1872)"
46. As per the definition extracted supra when one party is in a position to dominate the Will of others and 50 O.S. No.8070/2013 actually misuses the power, then it is a case of undue influence. To constitute undue influence 3 main ingredients are to be proved, which are as follows:
"(i) One person is in a position to dominate the Will of others.
(ii) He misuses his position.
(iii) He obtains an unfair
advantage."
47. The word undue means unnecessary,
unwarranted or more than required. Influence means
convincing the mind of a counter party through changing his mind or will, but this influence must be undue; i.e., it is not required. It means the unfair use of one's superior position to obtain the consent of a person who is in a weak position.
48. Dominant position is not defined in the Indian Contract Act, but Section 16 (2) of the Indian Contract Act provides certain conditions when a person is in position to dominate the Will of another. It applies to all relations 51 O.S. No.8070/2013 where domination can be exercised by one party over another; i.e., where exist real or apparent authority or fiduciary relationship. In the category of undue influence the circumstances under which the contract was made is taken into consideration along with their relationship. The existence of a dominating position along with its use is mandatory to invoke undue influence.
49. But, in the case on hand, it is specific case of the plaintiff that since the husband of defendant No.1 and her son are residing in Australia, hence, the defendant No.1 is stays in Australia for long. Further it is case of the plaintiff that defendant No.1 was residing separately in the house situated on Eastern side of the plaintiff's property. Thus, there is no material before the court to show that the defendant No.1 is in dominating position over the will of the plaintiff.
50. It is well settled law that merely because the parties are related to each other, no presumption of undue 52 O.S. No.8070/2013 influence can arise, but it must be established by a proof of relations of the parties having been such that the one naturally relied upon the other for advice and the other was in a position to dominate the Will of the first in giving it. However, it is for the court to examine whether undue influence was exercised or not, it must appeared in the pleadings to find out that such facts have been pleaded in the plaint. A vague or general plea can never serve to establish the undue influence. Admittedly it is a case of the plaintiff that defendant No.1 was staying for long at Australia with her husband and son and she used to come over India occasionally. Under such circumstances, no undue influence can be invoked.
51. The learned counsel for the plaintiff argued that there was no free will and the plaintiff has not executed Ex.P.4 voluntarily. According to Section 14 of the Indian Contract Act, the consent is said to be free when it is not caused by coercion, undue influence, fraud, 53 O.S. No.8070/2013 misrepresentation and mistake. The consent of the parties to a contract is regarded as free consent if it has not been induced by any of the five factors stated in Section 14 of the Indian Contract Act.
52. In the case on hand, the pleading with regard to fraud could find in para-8 of the plaint. The plaintiff has pleaded in the plaint at para-8 that the defendant No.1 used to take plaintiff's signature on documents when her husband was under treatment in hospital. Except this, there is nothing in the plaint in respect of fraud. Mere signing on papers without reading its contents is not sufficient to hold that defendant No.1 has played fraud and obtained Ex.P.4. Because, the plaintiff herself come forward to execute the gift deed and come to Office of Sub- Registrar for registration of gift deed in favour of the defendant No.1 with relevant title deeds. No pleading in the plaint as to how and why the plaintiff was present before the Sub-Registrar for scanning the photo, signature 54 O.S. No.8070/2013 and thumb mark on Ex.P.4 in the presence of Sub- Registrar. Looking to the facts and circumstances of the case, there is absolutely no material before the court to hold that defendant No.1 was obtained Ex.P.1 by playing fraud and undue influence.
53. Fraud means a willful wrong representation of fact made by a party to a contract with an intention to deceive the other party or to induce him to enter into a contract as defined u/S 17 of the Indian Contract Act.
54. The learned counsel for the plaintiff argued on the point that Ex.P.4 is not a outcome of love and affection. Now it is relevant to appreciate Ex.D.1. Ex.D.1 is a copy of registered Will, executed by present plaintiff, in respect of present suit schedule property, in favour of one Karen J. Marcar, who is daughter of sister of plaintiff. In the said Will at page-2, para-8, it is mentioned thus:
"8. In the event, my niece Karen J. Marcar should predecease me, then the schedule property shall 55 O.S. No.8070/2013 be bequeathed in favour of her sister Mrs.Betty D'Sylva, residing at No.2, D & F Block, Austin Town."
55. This Will is executed by the plaintiff on 10.3.2003. As per the contents of Will extracted supra, it is clear that plaintiff had expressed her love and affection towards defendant No.1 by executing a Will Ex.D.1 extracted supra stating that in case the Karen J. Marcar is predeceased to the plaintiff, then the schedule property shall go to the defendant No.1 herein. Ofcourse, the plaintiff has revoked Ex.D.1 Will by executing registered deed of cancellation/revocation of Will, which is marked at Ex.P.24.
56. I have perused Ex.P.24, on perusal of the same, it is clear that the plaintiff has given reason for revocation of Will is that the present defendant No.1 has obtained Ex.P.4. That apart, it is well settled law that Will can be revoked by the testator at any point of time during her 56 O.S. No.8070/2013 lifetime. The purpose of appreciation of Ex.D.1 is that the plaintiff has expressed her love and affection towards defendant No.1 and expressed not only love and affection towards defendant No.1, but the plaintiff had also expressed her intention to give a suit property to the defendant No.1 at undisputed point of time. Thus, the argument of the learned counsel for the plaintiff that the gift deed executed by the plaintiff in favour of the defendant No.1 in respect of suit schedule property is not outcome of love and affection of plaintiff is holds no good.
57. Another circumstances have raised by the plaintiff by producing Ex.P.20 and P.21. Ex.P.20 and P.21 are the certified copy of plaint and written statement in O.S. No.25568/2016, filed by the present defendant No.1 against Ms.Karen June Marcar for permanent injunction restraining her from interfering with peaceful possession and enjoyment of the schedule property shown in the said suit.
57
O.S. No.8070/2013
58. The learned counsel for the plaintiff brought the notice of the court para-20 of Ex.P.21 the written statement filed against the present defendant No.1 in the suit referred supra. I have gone through the Ex.P.20 and P.21, it is clear that, there is a allegation of interference against the defendant in the said suit and the defendant has alleged against the plaintiff in the said suit that plaintiff is having habit of creating and fabricating the documents. When such allegation is made by the sister of defendant, it is clearly establishes the conduct of the defendant No.1 and it is also establishes the character of the defendant No.1 to take undue advantage of the circumstances. I have gone through the Ex.P.20 and P.21, it is clear that in order to show the cause of action the plaintiff has pleaded some allegation against the defendant and defendant has counter alleged against the plaintiff. These are only pleadings in civil proceedings, they are subject to trial and proof. There is no material before the 58 O.S. No.8070/2013 court that the contents of Ex.P.21 has proved against the present defendant No.1.
59. Now it is relevant to appreciate cross- examination of D.W.1 dated 17.8.2021, page-8, at last para, which reads thus:
"It is false to suggest that I along with witness by name Suresh went in his car and picked up Ms.Adam stating that they were taking her to the hospital office to sign some papers and took her to the Sub-Registrar Office."
60. Even though there is no pleading with regard to the facts extracted supra as per suggestion of the learned counsel for the plaintiff. But, the learned counsel for plaintiff tried to take this defence in the cross-examination. Even assuming for a moment, if the plaintiff picked up by the defendant No.1 and witness by name Suresh in the car, stating that, they were taking her to the hospital, but took the plaintiff to the Sub-Registrar Office. The plaintiff being 59 O.S. No.8070/2013 retired Teacher having served for more than 46 years, having rich experience in day today's common activities, and having good qualification, is it not possible for the plaintiff to identify the difference between the hospital and Sub-Registrar Office. Because, the plaintiff is not an illiterate person and not a rustic person. Even a rustic person can identify the difference between the Sub- Registrar and Hospital, if rustic person is subjected to scan his photo, finger print and signature. Such type of defence prima facie shows the uncommon conduct of the plaintiff. Thus, no prudent man can believe the words of plaintiff extracted supra.
61. Further it is relevant to appreciate the cross- examination of D.W.1 dated 27.7.2021, at last para, at page-25, which continues to page No.26, which reads thus:
"I may be paid Rs.19,510/- to the Registrar as referred in Ex.D.1 (a) at page-2. I took Mr.Suresh, witness No.2 to the Registrar 60 O.S. No.8070/2013 Office as my witness. Witness again deposes that he is a common witness for both parties.
Karen Marcar, witness No.1 in Ex.D.1 (a) is my sister. It is false to suggest that Mr.Suresh who signed as a 2nd witness on Ex.D.1
(a) is my friend. Witness voluntaries that he is a family friend."
62. It is undisputed fact that Karen Marcar is daughter of sister of plaintiff. So, witness No.1 Karen Marcar is not only relative of defendant No.1, but she is also daughter of sister of plaintiff. It is relevant to appreciate Ex.D.1, Copy of Registered Will, executed by the plaintiff, in favour of first witness Karen Marcar and expressed her love and affection to the first witness on Ex.P.4 (Ex.D.1 (a)). Thus, there is no circumstances to play fraud or undue influence by the defendant No.1. Even witness deposed that the attesting witness No.2 is also 61 O.S. No.8070/2013 family friend of plaintiff and defendant No.1 also. Under such circumstances, it cannot be held that the defendant No.1 has played fraud, undue influence and misrepresentation and obtained Ex.P.4. More particularly the plaintiff being retired Teacher having experience of 46 years as a Teacher, no prudent man can believe the case of the plaintiff.
63. The learned counsel for the plaintiff relied on the decision reported in 1946 OWN 283 (1946 SCC Online CC 62) in case of Ram Kalap Pande v/s Bansi Dhar and another. In support of his argument, on the fact of undue influence and fraud. The fact involved in the decision is that the plaintiff was an old man that he has lost his mental vigour, had weak eye sight and was hard of hearing and the defendant used to look after the plaintiff's property and obtained plaintiff's thumb mark and took the plaintiff by the defendant to the Sub-Registrar Office and got sale deed.62
O.S. No.8070/2013
64. In the case on hand, admittedly, the defendant No.1 is residing in the house situated on Eastern side of the plaintiff's house and it is also case of the plaintiff that since the husband and son of defendant No.1 are residing in Australia, hence the defendant No.1 stays for long terms in Australia. Further in the case on hand, the plaintiff is not a rustic, is not suffering from weak eye sight. Further in 1946 there was no procedure of scanning of photos, signature at the time of registration of document. In the present case, the defendant No.1 is residing separately before execution of deed and in the present case, the plaintiff is a retired Teacher having 46 years service and experience. Thus, the fact decided in the decision is entirely different from the facts involved in the present suit.
65. Further the learned counsel for the plaintiff argued that it is a case of fraud played by the defendant No.1 and obtained Ex.P.4 in support of his argument the learned counsel for the plaintiff relied on the decision 63 O.S. No.8070/2013 reported in (1994) 1 SCC in case of S.P.Chengalvaraya Naidu (Dead) by LRs v/s Jagannath (Dead) by LRs and others. In this decision their lordship have decided the fact that if the party having custody of vital document did not produce before the court and did not pleaded in the plaint about the document and suppressed a material fact, under such circumstances, it can be held that the party who did not produce the vital document, it amounts to fraud not only against the opposite party, it is also fraud on the court. But, in the case on hand, no such fact is involved.
66. Further learned counsel for the plaintiff relied on the decision passed by the Hon'ble Apex Court in Civil Appeal No.5717/2017 in case of Sonamati Devi and others v/s Mahendra Vishwakarma and others. In this judgment their lordship have held that if fraud is proved vitiates every solomon act. But, in the case on hand, plaintiff failed to prove the fraud alleged against the 64 O.S. No.8070/2013 defendant No.1. Hence, the law laid down in the decision is not applicable to the case on hand.
67. The plaintiff has filed this suit for declaration declaring that the gift deed dated 18.7.2008, executed by the plaintiff in respect of suit schedule property, in favour of the defendant No.1 is liable to be declared as non-est in the eye of law as it was obtained by defendant No.1 by playing fraud, without knowledge of plaintiff, without free consent and by exercising undue influence and by false representation. The defendant No.1 appeared through counsel and filed written statement denying the allegation made by the plaintiff in the plaint and contended that plaintiff has executed gift deed dated 18.7.2008, in respect of suit schedule property, in favour of defendant No.1 out of love and affection, with a free will and no fraud, undue influence and misrepresentation played by the defendant No.1 while executing gift deed by the plaintiff. My learned Predecessor has framed the issues as already extracted 65 O.S. No.8070/2013 supra. First issue is in respect of gift deed dated 18.7.2009, which reads thus:
"Whether plaintiff proves that the gift deed dt: 18.7.2009 is null and void and not binding on the plaintiff?"
68. In the said issue, no specific words as fraud, undue influence and misrepresentation are mentioned. But, in the plaint, the plaintiff has alleged that defendant No.1 has obtained Ex.P.1 by playing fraud and undue influence. Thus, the counsel for the plaintiff argued that when plaintiff has pleaded in the plaint about the facts of fraud, then it is sufficient even there is no specific issue with regard to fraud. In support of his argument, he relied on the decision reported in 2010 SCC Online KAR 329 (2010) 3 AIR KANT R 780 in case of B.C.Ravindra and other v/s Deviramma. Thus, on careful perusal of the oral and documentary evidence it is clear that plaintiff has 66 O.S. No.8070/2013 utterly failed to prove that the gift deed dated 18.7.2009, executed by her, is null and void and not binding on her.
Further plaintiff failed to prove her possession over the suit schedule property as a absolute owner. Hence, I answer issue Nos.1, 2 and 4 in the Negative.
69. ISSUE No.3 & 5: Both these issues are interconnected to each other, in order to avoid repetition, I proposed to answer both these issues commonly. When, on perusal of the material placed before the court, it is held that, plaintiff has failed to prove that the defendant No.1 obtained Ex.P.4 by playing fraud, undue influence and misrepresentation, then it can be safely held that, on basis of registered gift deed, executed by the plaintiff, in favour of the defendant No.1, in respect of suit schedule property, the revenue records have been changed in the name of defendant No.1, in respect of suit schedule property. Since it is held that the gift deed executed by the plaintiff in favour of the defendant No.1, in respect of suit schedule 67 O.S. No.8070/2013 property, is valid and legal under the law, hence the revenue records stands in the name of defendant No.1 in respect of suit schedule property on basis of valid title deed of gift dated 18.7.2009. Hence, the plaintiff is not entitled for the relief of declaration as prayed in the plaint. Hence, I answer issue Nos.3 & 5 in the Negative.
70. ISSUE No.6 to 8: All these three issues are interconnected to each other, in order to avoid repetition, I proposed to answer all these three issues commonly. In view of the findings on issue No.1 to 5, it is clear that this court has held that the plaintiff has failed to prove that the gift deed executed by the plaintiff, in favour of defendant No.1, in respect of suit schedule property, is obtained by playing fraud, undue influence and misrepresentation, it is also held that plaintiff failed to prove that she is in possession over the suit schedule property as a absolute owner, hence the plaintiff is not entitled for any direction against the defendant No.2 to 4 for restoration of her name 68 O.S. No.8070/2013 in the revenue records and not entitled for the relief of cancellation of gift deed dated 18.7.2009 as prayed in the plaint. Hence, I answer issue Nos.6 to 8 in the Negative.
71. ISSUE No.9 & 10: Both these issues are interconnected to each other, in order to avoid repetition, I proposed to answer both these issues commonly. I have perused Ex.P.4, Registered Gift Deed, dated 18.7.2009, executed by the plaintiff in favour of the defendant No.1, it is clear that the defendant No.1 has accepted the gift. The learned counsel for the plaintiff argued that the plaintiff is in possession of the suit schedule property and brought the notice of the court on the admission of defendant No.1 in the cross-examination of D.W.1 in 2 nd para, after 4 lines from top, which reads thus:
"It is true that, plaintiff is in possession of the suit property since her birth."69
O.S. No.8070/2013
72. On the other hand, argument of the learned counsel for the defendant No.1 is that plaintiff is in permissive possession over the suit schedule property after execution of Ex.P.4 in favour of the defendant No.1. The requirement of Section 122 of the Transfer of Property Act is that there must be a transfer of ownership of a property, the property should be of existing property, the transfer should be voluntary, it shall be without consideration, it can be movable or immovable property, the transfer should be accepted by the donee from the donor, the acceptance of the transfer must be during the lifetime of donor and he must be still capable of giving.
73. Thus, on perusal of the provisions of Section 122 of the Transfer of Property Act, it is clear that there is no mention of delivery of possession of the property. The gift u/S 122 of TP Act requires the acceptance by the donee, it would mean the donee agreeing or giving consent to the said gift. Even a conditional gift can be made under the 70 O.S. No.8070/2013 law by the donor, but, the condition must not be repugnant to any of the Section 10 to 34 of Transfer of Property Act. Ofcourse, Section 123 of the TP Act deals with the mode of transfer in case of gifts. It provides separate provisions for gift of immovable and movable properties. With regard to gifts of immovable property, Section 123 of TP Act provides that the transfer must be effected by registered instrument signed by or on behalf of the donor and attested by atleast two witnesses. It prescribes two essential for transfer of immovable property by way of gifts namely, it must be effected by a registered instrument and attested by atleast two witnesses, but there is no mention made with regard to delivery of possession, one of the pre requisition for registration is the transfer must be in writing and cannot be done orally. The registration must be completed in the manner prescribed by the Indian Registration Act. Thus, the possession of the defendant No.1 in suit schedule property is lawful 71 O.S. No.8070/2013 possession and possession of the plaintiff over the suit schedule property is a permissive possession after registered gift deed dated 18.7.2009. Hence, plaintiff failed to prove the illegal interference of the defendant No.1 over the suit schedule property. Thus, plaintiff is not entitled for permanent injunction against the defendant No.1. Hence, I answer issue Nos.9 and 10 in the Negative.
74. ISSUE No.11: In view of the findings on issue Nos.1 to 10, I proceed to pass the following:-
ORDER The suit filed by the plaintiff is hereby dismissed.
No order as to costs.
Draw decree accordingly.
Office is hereby directed to keep copy of judgment in O.S. No.26697/2013.
(Dictated to the Stenographer directly on computer system, computerized by her, after online correction by me, 72 O.S. No.8070/2013 printout taken by her and then pronounced by me in the open court on this the 9th day of December, 2021).
(Yamanappa Bammanagi) 73rd Addl. CC & SJ, M.H.Unit, Bangaluru. (CCH-74) SCHEDULE All that piece and parcel of the property bearing Municipal No.15, (New PID No.111-WO365-2-1, Old PID No.76-131-15) situated at D & F Block, Austin Town, Bangaluru-560047, admeasuring 868 Sq. Ft., or thereabouts consisting of a Living Room, Kitchen, Bedroom, Toilet, enclosed Veranda and a Portico, the said property bounded on the:
East by: Property bearing No.2; West by: Road;
North by: Property bearing No.16; and on South by: Property bearing No.14.
(Yamanappa Bammanagi) 73rd Addl. CC & SJ, M.H.Unit, Bangaluru. (CCH-74) 73 O.S. No.8070/2013 ANNEXURES List of witness examined for the plaintiff's side:
P.W.1 - Smt.M.Adams @ Molly Adams List of documents exhibited for the plaintiff's side:
Ex.P.1 - Certified copy of sale deed dated 2.8.2002 Ex.P.2 - Certified copy of deed of rectification dated 28.12.2002 (Original Ex.P.1 and 2 is in possession of defendant No.1) Ex.P.3 - Certified copy of final decree in O.S. No.15170/2003 Ex.P.4 - Certified copy of gift deed Ex.P.5 - Certified copy of the khatha certificate Ex.P.6 - Certified copy of khatha extract Ex.P.7 - Medical certificate of the death of Joseph Ex.P.8 - Death certificate of Joseph Ex.P.9 - Registration of khatha Ex.P.10 - The receipt of burial permission Ex.P.11 - T.T. service letter Ex.P.12, 12(a) to (h) - Eight photos Ex.P.13 - C.D. Ex.P.14 - Photo receipt Ex.P.15 - Letter issued by Australian Government on 19.3.2010 Ex.P.16 & 17 - Encumbrance Certificates Ex.P.18 - Four tax-paid receipts Ex.P.19 - Complaint lodged by defendant No.1 on 28.10.2013 Ex.P.20 - Certified copy of plaint in O.S. No.25568/2016 Ex.P.21 - Certified copy of written statement in O.S. 74 O.S. No.8070/2013 No.25568/2016 Ex.P.22 - Partition deed executed between defendant No.1 and her brother Colin Marcar Ex.P.23 - Sale deed executed by BBMP in favour of defendant No.1's brother sister Ms.Karen Marcar in respect of property bearing No.2, D and F Ex.P.24 - Deed of cancellation/revocation of Will dated 26.11.2013 Ex.P.25 - Deed of rectification dated 28.12.2002 List of witness examined for the defendants' side:
D.W.1 - Smt.Betty D'Sylva List of documents exhibited for the defendants' side:
Ex.D.1 - Notarized Will and testament executed by plaintiff Ex.D.1(a) - Original deed of absolute gift dated 18.7.2009 Ex.D.2 - Receipt for having payment of katha transfer fee Ex.D.3 - Katha endorsement dated 27.11.2009 Ex.D.4 - Katha certificate dated 01.12.2009 Ex.D.5 - Katha certificate dated 11.07.2019 Ex.D.6 - Katha extract dated 11.07.2019 Ex.D.7 - Tax-paid receipt for the year 2019-20 (Yamanappa Bammanagi) 73rd Addl. CC & SJ, M.H.Unit, Bangaluru. (CCH-74) 75 O.S. No.8070/2013