Bangalore District Court
Shubha Rao K vs Sharath K on 5 March, 2024
/ 1 / O.S.No.1496/2021
KABC010049932021
THE COURT OF XXXIX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, (CCH-40), BANGALORE CITY.
DATED 05th MAR 2024.
PRESENT
YASHAWANT R. TAWARE,
B.Sc., LL.B.,(Spl.),
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT NO.1496/2021
Plaintiff :
Smt. Shubha Rao K.
D/o Sri. S. Krishna Rao,
W/o Mahesh S.,
Aged about 44 years,
Residing at No.G-009,
Niranjan Central Apartment,
2nd Main, 2nd Cross,
Near Dharmaraya Swamy Temple,
Tavarekere, BTM layout 1st Stage,
Bangalore South, Bangalore
Karnataka - 560 029.
(By Smt. Shailaja., Advocate)
/ VERSUS /
/ 2 / O.S.No.1496/2021
Defendant :
Mr. Sharath K. S/o Sri. S. Krishna Rao,
Aged about 40 years,
Flat No.201, '' Vallabha Residency ''
I Floor, Gopalakrishna Layout,
Yadalam Nagar,
Subramanyapura Post,
Bangalore - 560 061.
(By Sri. Gajendra S., Advocate)
Date of Institution of the Suit 26.02.2021
Nature of the Suit (Suit on Partition and Separate
pronote, Suit for declaration Possession
and possession, Suit for
injunction etc,)
Date of the commencement of 22.07.2022
recording of the evidence
Date on which the Judgment 05.03.2024
was pronounced
Total duration Year/s Month/s Day/s
03 years, 0 months, 09 days.
JUDGMENT
The plaintiff has filed this suit seeking partition and separate possession of her half share in the plaint schedule property and for awarding mesne profits from defendant for wrongful usage of the plaintiff's half portion of the schedule / 3 / O.S.No.1496/2021 property till the date of actual possession of her said half share and costs of the suit from defendant.
2. The plaint averments in brief are that :
The plaint schedule 'A' property is entire Apartment constructed on the property bearing No.35, Assignment No.5, Khata No.384/5 measuring 39 X 45 feet totally 1755 sq. feet. The plaint schedule 'B' property is described as 50% of 215 sq. feet of undivided share, right, title and interest in schedule 'A' property. Plaint schedule 'C' property is described as 50% of undivided right, title, share and interest in the Flat No.201 in the 1st Floor of the Apartment known as ' Vallabha Residency ' having built up area of 800 sq. feet which is assigned with BBMP B-extract No.384/5/35/FF201 which is fully described in the schedule of the plaint. It is contended that, one Sri.S.Krishna Rao is father of plaintiff and defendant. He along with defendant had jointly purchased the plaint schedule 'C' property, out of their own funds contributed to the extent of their respective shares, from its vendor under Regd. sale Deed / 4 / O.S.No.1496/2021 dated 30.04.2011. Since then, the said Sri.S.Krishna Rao and defendant have become joint owners of plaint schedule 'C' property and they have got undivided half share each therein. The original title deeds and other documents relating to plaint schedule 'C' properties are in the custody of defendant. The plaintiff has married in the year 1996 and she is now staying along with her husband in Bengaluru. Sri.S.Krishna Rao along with defendant and his family was residing in the schedule 'C' property since the time of its purchase under Regd. Sale Deed dated 30.04.2011. The said Sri.S.Krishna Rao worked in Karnataka Power Transmission Corporation Ltd., Bengaluru. He retired from service and getting pension and maintaining himself. The said S.Krishna Rao is 75 years old and he has common old age infirmities. The defendant has neglected to look after his father during his old age and also developed aversion towards him. As a result, on 13.12.2019, the defendant shifted his father to Samastha Hospital, Subramanyapura, Bengaluru where he was unnecessarily confined there in isolation for about 175 days. The said / 5 / O.S.No.1496/2021 Sri.S.Krishna Rao came to know that the defendant has misused his Bank debit card and Internet banking and thereby withdrawn certain amounts for his personal needs. The said Sri.S.Krishna Rao was subjected to serious physical and mental agony due to negligence of the defendant to maintain him. In this regard, the said Sri.S.Krishna Rao gave complaint with Subramanyapura Police station. Under these circumstances, the said Sri.S.Krishna Rao came to the house of the plaintiff on 05.06.2020. Since then, the plaintiff and her husband are taking care of the said Sri.S.Krishna Rao with utmost love and affection. The facts being stood thus, the said Sri.S.Krishna Rao has gifted his undivided half share, right, title and interest in the schedule property in favour of plaintiff by executing a Regd. Gift Deed dated 19.08.2020 and delivered its actual possession to the plaintiff. Accordingly, the khata has been mutated in the name of plaintiff. The plaintiff is paying its property tax regularly. The plaintiff finds that it is not safe to her to be in joint possession of the schedule property and as such she orally demanded the defendant to divide the schedule / 6 / O.S.No.1496/2021 property by metes and bounds and allot her half share therein.
The defendant promised to do the same but he went on postponing on one or the other pretext. Finally, the plaintiff has caused to issue a legal notice dated 25.01.2021 through her counsel by RPAD calling upon the defendant to divide the schedule property by metes and bounds and allot half share therein to the plaintiff within a week from the date of the receipt of the said notice. The said legal notice personally served to the defendant. However, the said defendant has neither replied to the said legal notice nor complied with the terms of the said notice. Therefore, the plaintiff having left with no other alternative has constrained to file this suit for allotment of her half share by effecting partition in the schedule property be metes and bounds and for mesne profit from the defendant.
3. In response to the service of summons, the defendant has entered his appearance through their Sri.Gajendra S., the learned counsel and filed his written statement in defence to this suit of the plaintiff.
/ 7 / O.S.No.1496/2021 In the written statement, the defendant has admitted that Sri.S.Krishna Rao and himself had jointly purchased the plaint schedule 'C' property out of their own funds contributed to the extent of their respective shares, from its vendors under Regd. Sale Deed dated 30.04.2011 and since then, he and Sri.S.Krishna Rao have become joint owners in possession of the schedule 'C' property and they both have got undivided half share therein. The defendant has also admitted that, Sri.S.Krishna Rao, himself along with his wife and son were staying the schedule 'C' property since the time of its purchase under the Sale Deed dated 30.04.2011. The defendant has taken up contentions that, he has raised a loan from DHFL, Bengaluru for purchasing the schedule 'C' property and as such all the original documents in respect of the schedule 'C' property are in the custody of said financing institution. He further contends that, his father Sri.Krishna Rao was working in Karnataka Power Transmission Corporation Ltd., Bengaluru. He retired from service in the year 2005. He is getting pension. He was aged about 76 years and has common / 8 / O.S.No.1496/2021 old age infirmities. After retirement, he was residing with defendant and defendant's family in the schedule property. He was attacked with paralysis during the year 2000. The defendant and defendant's wife and mother were taking care of him. Defendant's mother has expired in the year 2009. Thereafter, defendant and his family were taking care of him. In the year 2016, the defendant's wife under went major operation on spinal chord. Under those circumstances, Sri.S.Krishna Rao was also partially bedridden and as such he was admitted in the hospital. The defendant has denied that, he neglected to take care of his father during his old age and he shifted his father to Samastha Hospital, Bengaluru and confined him in the said hospital in isolation for 175 days and he utilised the Bank debit card and Internet banking of his father and withdrawn huge amounts for the personal needs. It is further contended that, Sri.S.Krishna Rao was not in a sound state of mind because of his age factor and he was not aware of what exactly he is doing. By taking advantage of this situation, the plaintiff to gain illegally is pretending that she is taking / 9 / O.S.No.1496/2021 care of her father. Sri.S.Krishna Rao is having more than Rs.60 lakhs and the same has been given to his known people for interest. The plaintiff and her husband to gain illegally the said amount are pretending to take care of the said Sri.S.Krishna Rao. On the provocation and instigation of plaintiff, Sri.S.Krishna Rao has lodged a police compliant before the Subramanyapur Police station but he has not aware what he was doing, then the police advised the plaintiff to mend her attitude. Sri.S.Krishna Rao was not at all aware of the said complaint given by him in the police station. Later on, he withdrew the said complaint. The plaintiff and her husband by pretending to take care of defendant's father got executed the Gift Deed from him in favour of plaintiff. The defendant is not aware that the khata has been mutated in the name of plaintiff. The defendant has paid the property tax up to date and not the plaintiff. It is true that, the plaintiff has issued legal notice dated 25.01.2021 calling upon the defendant to effect partition in the schedule property and give her half share within a week. The defendant has given suitable reply to the / 10 / O.S.No.1496/2021 said legal notice. The defendant is aware that, his father has not executed the Gift Deed in favour of the plaintiff. The defendant father is aged person and not aware of exactly what he is doing. He was not in sound mind. Taking undue advantage of the said situation, the plaintiff and her husband are pretending like care taker and brain washed the defendant's father and got executed from him a registered Gift Deed in favour of plaintiff and as such the said Gift Deed is a fabricated document. On these and certain other grounds, the defendant has prayed for dismissing the suit of the plaintiff with costs.
4. On the strength of respective pleadings and documents of the parties, my learned predecessor has framed the following issues :
ISSUES (1) Whether the plaintiff proves that the suit schedule properties are joint properties of plaintiff and the defendant as co-owners ?
/ 11 / O.S.No.1496/2021 (2) Whether the court fee paid by the plaintiff is sufficient ?
(3) What reliefs plaintiff is entitled ?
(4) What order or decree?
5. In order to prove the case, the plaintiff has got examined herself as P.W.1 and her father as PW.2 and relied upon in all fourteen documents marked at Exs.P.1 to P.14 and closed her side.
By way of rebuttal, the defendant has got examined himself as D.W.1 and relied upon in one document marked at Ex.D.1 and closed his side.
6. I have heard Smt. Shailaja, the learned counsel for the plaintiff and Sri. Gajendra S., the learned counsel for the defendant.
7. My findings to the above issues are as under:
ISSUE NO.1 & 2 : In the affirmative;
ISSUE NO.3 : Partly in the affirmative;
/ 12 / O.S.No.1496/2021
ISSUE NO.4 : As per final order passed
below for the following:
REASONS
8. ISSUE NOs.1 AND 3.
As these issues are interlinked with each other, I take them at one stretch for my consideration and determination to avoid repetition of facts.
One Sri.S.Krishna Rao is the father of plaintiff and defendant herein is not in dispute. As per the case of the plaintiff, the said Sri.S.Krishna Rao and Sri.Sharath K., the defendant herein have jointly purchased the residential Flat No.201 in the first floor of Apartment known as ' Vallabha Residency ' having super built up area of 800 sq. feet with single covered car parking space in the stilt floor which is described as plaint schedule 'C' property, out of their own funds contributed to the extent of their respective shares under Regd. Sale Deed dated 30.04.2011. The plaintiff has produced certified copy of the said Regd. Sale Deed dated 30.04.2011 as per Ex.P.1. It is worth to note that, the defendant / 13 / O.S.No.1496/2021 has categorically admitted this fact in para No.5 of his written statement. The law is well settled that, admissions given in the pleadings are conclusive proof of the facts admitted. As can be seen from the Sale Deed dated 30.04.2011 (Ex.P.1), the schedule 'C' property was purchased for valuable sale consideration of Rs.11,60,000/-. As can be seen from the records, out of the total sale consideration, a sum of Rs.6,00,000/- by way of cheque No.578322 dated 18.01.2011 and Rs.7,00,000/- by way of self cheque No.578323 and Rs.60,000/- by way of cash was paid by Sri.S.Krishna Rao and Rs.5,00,000/- was only paid by defendant herein through cheque No.266849 dated 30.01.2011 through Housing Finance Corporation Ltd., Bengaluru. Thus, it is clear that the major portion of sale consideration amount was paid by Sri.S.Krishna Rao. It has come in the evidence that, the defendant has raised loan from Housing Finance Corporation Ltd., Bengaluru for purchasing the schedule 'C' property and he is paying its loan installments till today. As the defendant has raised loan for the payment of sale consideration amount to the extent of his share only, it makes / 14 / O.S.No.1496/2021 no difference that the defendant is paying its loan installments till today. As can be seen from the records, the joint names of Sri.S.Krishna Rao along with defendant is reflected in the khata which goes to show that based on the sale deed dated 30.04.2011 (Ex.P.1), the BBMP had accepted the joint names of the said Sri.S.Krishna Rao and defendant in the khata of the said property. Ex.P.4 also discloses that, the said Sri.S.Krishna Rao was paying its property tax to the BBMP. Thus, from these above records coupled with categorical admission of defendant in his pleadings, a conclusion can be made that the plaint schedule 'B' & 'C' properties were joint properties of Sri.S.Krishna Rao and defendant herein.
9. As per the case of the plaintiff, Sri.S.Krishna Rao has gifted his undivided half share in the plaint schedule 'B' & 'C' properties in favour of plaintiff by executing a Regd. Gift Deed dated 19.08.2020. The plaintiff has produced original and certified copy of the said Regd. Gift Deed dated 19.08.2020 as per Exs.P.2 & P.7 respectively. As can be seen from Ex.P.3, the / 15 / O.S.No.1496/2021 name of the plaintiff in place of Sri.S.Krishna Rao along with the name of defendant came to be mutated in the khata of the schedule property by BBMP based on the aforesaid Regd. Gift Deed dated 19.08.2020. The plaintiff claims that, she is having undivided half share in the plaint schedule 'B' & 'C' properties and it becomes difficult for her to remain in joint possession of the said property along with defendant and as such she demanded her share to the defendant by effecting partition in the schedule property by metes and bounds by several approach and issuing legal notice dated 24.01.2021 as per Ex.P.5 and that, the defendant even after receiving the said legal notice which is evident from postal acknowledgment card as per Ex.P.6, has not complied with the terms of the said legal notice. PW.1 who is plaintiff herein has reiterated all these above facts in her evidence
10. It is to note that, the defendant has denied the execution, legality and validity of the said Regd. Gift Deed dated 19.08.2020 in the present case. The specific defence / 16 / O.S.No.1496/2021 taken up by the defendant with regard to the execution of the Regd. Gift Deed dated 19.08.2020 by his father is found in Para Nos.8 & 9 of written statement filed by the defendant. The para Nos.8 & 9 of written statement are extracted herein below for my reference;
8. The plaintiff is put to strict proof of the same. Further averment that, the father of the plaintiff came to the house of plaintiff on 05-06- 2020, even since the plaintiff and her husband Mr. Mahesh S. have been taking care of the father of the plaintiff, with utmost love and affection by keeping him in their proper care and custody., are all false and incorrect. It is a fact that, the defendant father is not in sound mind because of his age factor and he is not aware of what exactly he is dong, by taking advantage of this situation the plaintiff to gain illegally pretending that she is taking care of her father. The father of defendant is paralysis patient, since from 2000 and he is also partially bedridden since from 2016, taking advantage of this situation, the plaintiff and her husband playing the game.
9. As regards in the averments made in paragraph 7 of the plaint that, on 19.08.2020, Sri.S.Krishna Rao, the father of the plaintiff gifted and settled his 50% of undivided right, title share / 17 / O.S.No.1496/2021 and interest in the plaint schedule mentioned property in favour of the plaintiff by way of registered gift deed dated 19-08-2020-CMP-1-01745- 2020-21 CD No.CMPD612 in the office of the Sub- Registrar, Basavangudi, (Chamarajpet), Bangalore and delivered the possession of his half share in the plaint schedule mentioned property to the plaintiff, on account of his natural love and affection towards her, are all false and concocted story. The defendants father is aged person and not aware of exactly what he is doing and not in sound mind, by taking the advantage of the situation and pretending to take care of defendants father and brain washing the father of the defendant executed the gift deed mentioned above, the father of the defendant has not willfully executed the above mentioned gift deed in favour of the plaintiff herein. Further averment that, the katha of the plaint schedule mentioned property has also been mutated in the name of the plaintiff, is not aware of this defendant. Further averment that, the property tax has been paid up to dated is false. The plaint is put to strict proof of the same. It is a fact that, the defendant has paid the upto date tax to the concerned department.'' As can be seen from the above pleadings, the defendant has specifically pleaded that, his father is not in a sound state of / 18 / O.S.No.1496/2021 mind due to his age factor and he is incapable of understanding as to what exactly he is doing and he is suffering with paralysis since 2000 and he is partially bedridden since 2016 and by taking undue advantage of his such health condition, the plaintiff is pretending as a care taker of his father and she brain washed her father and she got executed the aforesaid Gift Deed in question and the said Gift Deed was not willfully executed by his father in favour of plaintiff. It is to note that, PW.1 has been subjected to a detailed cross-examination running into several pages. In the entire cross-examination, it was suggested to the said PW.1 that, her father suffered paralytic attack in the year 2000 and second time, her father was attacked with paralysis in the year 2016 and since then her father was completely bedridden and in the year 2018, her father was attacked with paralysis for third time and as a result, he fell down and suffered head injuries and since then his health condition was such that he was incapable of making any rational decision and in addition to that, her father suffered brain stroke in the year 2018 and / 19 / O.S.No.1496/2021 in such a situation, the plaintiff took her father and got executed Gift Deed in the year 2020 by playing fraud upon him and as such the said Gift Deed has no sanctity under law and the plaintiff got executed the said Gift Deed during the time when her father was suffering with brain stroke with an intention to deceive the defendant. In course of further cross- examination, it was suggested to the PW.1 that, the signature of her father appeared in Exs.P.1 & P.2 are not matching and the signature appeared in Ex.P.2 which are in variance with signature in Ex.P.1 are for the reason that her father was suffering with brain stroke. In the further cross-examination, again it was suggested to the PW.1 that she got executed the Gift Deed from her father when her said father was suffering with brain stroke and also she got executed the said Gift Deed by exerting mental pressure on her father. It was also suggested that, no any medical certificate was produced in the office of the Sub-Registrar to show that her father was in a sound disposing state of mind on 19.08.2020 and as the Gift Deed was got executed during the time when her father was / 20 / O.S.No.1496/2021 suffering with brain stroke, it is a void document. It was also suggested that, her father was completely suffering with paralysis during the period 2000 to 2014 and her father had also lost his memory power due to brain stroke and as such by playing fraud upon her father, she got executed the Gift Deed and on the said Gift deed, her husband and daughter had put signatures as attesting witnesses and she has not examined the said attesting witnesses to prove the Gift Deed. All such suggestions have been flatly denied by the PW.1 as false. The learned counsel for the defendant was not able to get a single admission through out the cross-examination of PW.1 which is running into several pages to believe that the plaintiff's father was not in a sound disposing state of mind at the time of execution of the Gift Deed dated 19.08.2020. It is to note that, the pleadings are like a skeleton and evidences are like flesh. No flesh would stand without there being any skeleton. Like wise, any amount of evidence adduced on record without there being any pleadings is of no avail. As can be seen from the pleadings averred in para Nos. 8 & 9 of the written statement / 21 / O.S.No.1496/2021 which are extracted supra, what has been pleaded by the defendant is simply that his father is not in sound mind due to age factor and his father is suffering with paralysis since 2000 and he is also partially bedridden since 2016 and he is not aware of what exactly he is doing. This is the pleading averred by the defendant to attack the legality and validity of the Gift Deed dated 19.08.2020. On the other hand, PW.1 has been cross-examined at length suggesting that her father suffered paralytic attack first time in the year 2000, second time in the year 2016 and third time in the year 2018 and during the same year he fell down and suffered head injuries and since then her father was incapable of forming any rational decision. There is no pleading averred by the defendant that his father fell down and suffered head injuries and since then he was in capable to forming rational decision as to which is wrong and which is correct. The PW.1 has been repeatedly suggested that, her father suffered brain stroke and as a result her father is in a unsound state of mind and taking undue advantage of his such mental condition, she got executed Gift Deed under the / 22 / O.S.No.1496/2021 garb of care taker. There is no pleading averred by the defendant that his father has ever suffered with brain stroke and as a result his father became unsound state of mind permanently. As can be seen from the pleadings, the defendant has pleaded that his father was not in a sound mind due to his age factor. Even it is not pleaded that his father was not in a sound state of mind due to paralysis. The defendant has pleaded that his father is partially bedridden due to paralysis since 2016. The word partially speaks in volume which means that his father was capable of moving. As per Sec.12 of the Contract Act 1872, a person is said to be of unsound mind for the purpose of making a contract, if at the time when he makes it, he is capable of understanding it and forming a rational judgment as to its effect upon his interests. A person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind. A person who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind. Thus, even a person of unsound mind can make a contract at the time when / 23 / O.S.No.1496/2021 he was of sound mind. Assuming that, the plaintiff's father is usually of unsound mind due to his health condition, yet he can make a contract at the time when he was of sound state of mind. Therefore, the burden lies upon the defendant to prove that his father was of unsound state of mind at the time of execution of the Gift Deed on 19.08.2020. The defendant has adduced no any independent evidence to prove the said aspect of the matter except his self interested testimony and by mere suggestions put to in the course of cross-examination of PW.1 which have been totally denied. The defendant's father was a employee in Karnataka Power Transmission Corporation Ltd. He retired from the service in the year 2005. He is getting pension. The defendant himself in Para No.7 of his written statement has taken up contentions that, his father had saved money to an extent of Rs.60 lakhs and he was advancing his saved money to his known people on interest. This contention of the defendant will go to show that his father was usually of sound state of mind capable of forming a rational decision. It is a matter of record that, the defendant's father had lodged a / 24 / O.S.No.1496/2021 complaint against the defendant on 13.02.2020 with Subramanyapura Police station complaining that he had been physically and mentally ill-treated by defendant and the said defendant had also snatched his debit card and PIN number and utilising his amount. It appears that, the police had recorded the statement of defendant pursuant to the said complaint which has been produced as per Ex.P.9. In the said statement before the police, the defendant had stated that, he had admitted his father in a nearby Samastha Hospital for want of facilities in his house and a Nurse had been appointed to look after his father and before admission in the said Hospital, his father himself handed over his debit card and PIN number and if his sister (Shubha) is ready to look after the affairs of his father, he would hand over debit card to her. Thus, this is another circumstances which indicates that the defendant's father is usually of sound state of mind and that is the reason, he himself went to the police station and lodged the complaint against defendant regarding his ill-treatment and snatching debit card and PIN number. Therefore, the / 25 / O.S.No.1496/2021 contentions of the defendant that, his father is not in a sound state of mind cannot be accepted. Further it appears that, apart from this aforesaid complaint dated 13.02.2020 lodged by defendant's father, the plaintiff's husband had filed one more complaint against defendant on 02.07.2020 with the jurisdictional Subramanyapura Police through E-mail. The police had advised the both parties to settle the matter amicably and after series of discussion, the parties had agreed for compromise. Accordingly, the defendant had handed over to his father the various items shown in Ex.P.13 on 21.08.2020 which includes Silver utensils, Furnitures, House hold items, TV, Two wheeler, Music system etc., This is another circumstances which indicate that the defendant's father was capable of forming a rational decision. As can be seen from Ex.P.7(b), the defendant's father had remitted the hospital charges through his credit card which goes to show that the defendant's father was also having a credit card apart from debit card for shopping and this is another instance to hold that the defendant's father was usually of sound person and / 26 / O.S.No.1496/2021 capable of forming rational decisions. Beside this, now the savings account of the defendant's father is standing jointly with the name of plaintiff which is evident from the statement of account marked at Ex.P.10. That apart, the defendant's father had made the plaintiff as his nominee to his savings account maintained at State Bank of India which is evident from Ex.P.11. All these instances very clearly demonstrates that the defendant's father was and is sound state of mind having capacity to form a rational decision. Therefore, the suggestions put to PW.1 in his cross-examination that the defendant's father was not in a sound state of mind due to his health conditions and as such taking advantage of his such condition, the plaintiff got executed Gift Deed from him cannot be accepted.
11. It is to note that, the defendant's father namely Sri.S.Krishna Rao is still alive to disclose as to whether or not he executed the Gift Deed in question in favour of his daughter who is plaintiff herein. This court has appointed a court / 27 / O.S.No.1496/2021 commissioner to record the evidence of said Sri.S.Krishna Rao who was suffering with paralysis and bedridden, by order dated 18.10.2022. Subsequently on 28.11.2022, the plaintiff filed I.A.No.5 to record the evidence of said Sri.S.Krishna Rao in the court before all other witnesses are examined on the ground that his health condition is deteriorating. Accordingly, this court has allowed and on the same day, the said Sri.S.Krishna Rao who is father of plaintiff and defendant herein came to be examined as PW.2. This PW.2 in his Affidavit filed in lieu of his examination in chief has categorically stated that the plaintiff and defendant herein are his children and he is joint owner along with his son, of plaint schedule property and now, he is staying with his daughter i.e., plaintiff herein in her house and he had gifted his half share in the schedule property in favour of his daughter as a token of love and affection by executing a Regd. Gift Deed dated 19.08.2020. He has identified his signature on the original Gift Deed (Ex.P.7), which came to be marked as Ex.P.7(a). In the course of cross- examination, the said PW.2 has categorically stated thus;
/ 28 / O.S.No.1496/2021 '' ....The plaintiff and her husband have not tuted me the manner as to how I should depose in this case. I know the contents of my chief affidavit..... My chief affidavit has been drafted by my lawyer as per my information. It is true that I am not in a sound state of mind since the year 2016. When the witness is suggested that the Gift Deed marked at Ex.P.7 came to be executed when I was not in a sound state of mind, the witness replies that I had executed the same. .... I had executed the said Gift Deed with my conscious state of mind. The said Gift Deed has been executed by the plaintiff by putting pressure on me is not correct. The execution of the said Gift Deed is illegal is not correct. Due to suffering of paralysis and brain stroke, I am incapable of understanding the nature and consequences of my acts but still I am deposing false evidence as tuted by plaintiff's lawyer is not correct. .... '' It is to note that, normally the findings recorded by the trial court will not be disturbed in the appeal by the appellate court for the reason that the trial court judges have the benefits of observing the demeanor, conduct, body language, / 29 / O.S.No.1496/2021 gesture etc., of the witnesses and and the said findings are rendered based on such observations. In the present case, when PW.2 had come to the court to depose in the case, this court did not find that the said PW.2 was of unsound mind. He had little difficulty to speak but he was in a sound state of mind while recording his evidence. As can be seen from his affidavit filed in lieu of examination in chief, the said affidavit was personally corrected by PW.2 in his own hand writing by reading its contents. This is a best instance to say that he was a sound person. Beside this, the said PW.2 has very clearly stated that he had executed the Gift Deed with his conscious state of mind. He has gone to the extent of stating that the plaintiff and her husband had not tuted him as to the manner how he should depose in this case. He has categorically stated that, his chief affidavit had been drafted by his lawyer as per his information. He has categorically denied that, he had executed the said Gift Deed on the pressure of plaintiff. He has also denied that, although he is incapable of understanding the nature and consequences of his acts but still he is deposing / 30 / O.S.No.1496/2021 false evidence as tuted by plaintiff's lawyer. Thus, PW.2 has categorically in unequivocal terms has stated that, he had executed that registered Gift Deed as per Ex.P.7 in respect of his half portion of the schedule property in favour of plaintiff on account of his love and affection. As can be seen from the Gift Deed (Ex.P.7), it is recited therein that, the donar out of natural love and affection towards his daughter desires to grant, transfer, convey, his 50% of undivided share, right, title, interest, claim, ownership whatsoever in property to the Donee as a gift without receiving any consideration. It is also recited therein that, the Donee has agreed to accept the gift. The tenor of the said Gift Deed also makes a mention of the fact that the Donar hereby place the Donee in absolute possession of the undivided share in schedule 'C' property on the date of these present before the witnesses and the Donar is executing the said deed without any force with his own wish and will without any consideration. It is to note that, as per Sec.122 of Transfer of Property Act 1882, gift is the transfer of certain existing movable or immovable property made voluntarily / 31 / O.S.No.1496/2021 without consideration by one person called as 'Donar' to another person called as 'Donee' and accepted by or on behalf of the Donee. Such transfer by way of gift can be effected by a registered instrument signed by the Donar and attested by at least two witnesses as per Sec.123 of the Transfer of Property Act. As per Sec.68 of the Indian Evidence Act 1872, if a document is required by law to be compulsorily attested, the execution of such document may be proved by examining at least one attesting witness. However, if the document is registered in accordance with the provisions of Indian Registration Act, it is not necessary to examine the attesting witness unless its execution by the person by whom it purports to have been executed is specifically denied. In the present case on hand, fortunately, the Donar is still alive. The said Donar has stepped into the witness box and categorically stated that he executed the Gift Deed as per Ex.P.7 in favour of his daughter in respect of his half portion in the schedule property out of his love and affection. Therefore, proof of the execution of the said Gift Deed (Ex.P.7) by examining at least / 32 / O.S.No.1496/2021 one attesting witness in terms of Sec.68 of the Evidence Act 1872, is not necessary. As per Sec.70 of the Indian Evidence Act 1872, the admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested. Thus, looked from any angle of the evidence adduced on record it leaves no manner of doubt that the plaintiff by adducing the evidence of Donar (PW.2) coupled with production of original Gift Deed as per Ex.P.7 has proved that, her father while he was in a sound disposing state of mind had gifted half portion of his undivided right, title, interest, share in the schedule property in her favour on account of his love and affection upon her by executing a Regd. Gift Deed dated 19.08.2020 as per Ex.P.7 and she has accepted the said gift during the lifetime of Donar itself. Undisputedly, Sri.S.Krishna Rao (PW.2) is a joint owner along with defendant of plaint schedule property. He gifted his half portion in the schedule property in favour of plaintiff by Regd. Gift Deed dated 19.08.2020. The plaintiff has established that the said Gift Deed / 33 / O.S.No.1496/2021 has been voluntarily executed by her father with sound disposing state of mind on account of his love and affection upon her and she has accepted the said Gift Deed. If so, then it automatically follows that the plaintiff and defendant are the joint owners of the plaint schedule property to an extent of half each by virtue of the said Regd. Gift Deed dated 19.08.2020. Now once it is proved that, the plaintiff has become joint owner of the schedule property by virtue of execution of Regd. Gift Deed dated 19.08.2020 by her father, then it automatically follows that, the plaintiff is entitled to the relief of partition and separate possession of her half share in the plaint schedule property by effecting partition therein by metes and bounds. So far as the claim of the plaintiff regarding mesne profits is concerned, the plaintiff has not adduced any evidence as to when the possession of the defendant in the schedule property to an extent of her half share becomes wrongful possession and what is the rental value prevailing to similar property in the said area etc., In the absence of evidence on the said aspect of the matter, the mesne profits of / 34 / O.S.No.1496/2021 the plaintiff's half share in the schedule property cannot be ascertained. With these observations, I shall conclude my discussions by holding that the plaintiff is joint owner of the plaint schedule property to the extent of its half share along with defendant as a co-owners as on the date of the suit and as such she is entitled to have her said half share alloted to her by effecting partition in the schedule property by metes and bounds. Accordingly, the re-casted Issue No.1 is answered in the affirmative in favour of the plaintiff and Issue No.3 framed herein above is answered partly in the affirmative in favour of the plaintiff.
12. ISSUE NO.2 The plaintiff has filed this suit for the relief of partition and separate possession of her half share in the plaint schedule 'B' & 'C' properties by metes and bounds. For the purpose of payment of court fee, the plaintiff has valued the schedule property to the extent of her half share at Rs.12 lakhs and paid a maximum court fee of Rs.200/- as per Sec.35 (2) of / 35 / O.S.No.1496/2021 KCF & SV Act 1958. The schedule property is a residential Flat. The defendant and his father namely Sri.S.Krishna Rao has jointly purchased the said Flat. They are in joint possession and enjoyment of the said Flat till the date. It is not the case of the defendant that his father has been dispossessed or out of possession of the schedule property. Therefore, the possession of the defendant in the schedule property is for and on behalf of all the co-owners. Therefore, the plaintiff who has stepped into the shoes of her father is deemed to be in joint possession of the schedule property. Therefore, the payment of court fee under Sec.35(2) of KCF & SV Act 1958 by the plaintiff towards her relief of partition and separate possession of her share is proper and correct. Accordingly, the Issue No.2 framed herein above is answered in the affirmative in favour of the plaintiff.
13. ISSUE NO.4 In view of my findings given on Issue Nos.1 to 3 and for the reasons discussed herein above paragraphs, I proceed to pass the following:
/ 36 / O.S.No.1496/2021
ORDER
The suit of the plaintiff is hereby partly
decreed with costs in the following terms;
It is hereby ordered that, the plaintiff is entitled for partition and separate possession of her half share in the plaint schedule 'B' & 'C' properties by metes and bounds.
Draw up preliminary decree accordingly.
(Dictated to the Stenographer, typed directly on computer, script corrected, signed and then pronounced by me in the open court, this the 05th day of March, 2024.) (YASHAWANT R TAWARE) XXXIX Addl. City Civil & Sessions Judge, Bangalore City.
ANNEXURE
1. List of witnesses examined on behalf of plaintiff:
P.W.1 Smt. Shubha Rao K.
P.W.2 Sri.S.Krishna Rao
/ 37 / O.S.No.1496/2021
2. List of documents exhibited on behalf of plaintiff:
Ex.P.1 Certified copy of Regd. Sale Deed
dated 30.04.2011
Ex.P.2 Certified copy of registered Gift Deed
dated 19.08.2020
Ex.P.3 Khata extract
Ex.P.4 Tax paid receipt
Ex.P.5 Office copy of the legal notice with postal
receipt
Ex.P.6 Postal acknowledgment card
Ex.P.7 Original copy of Regd. Gift Deed
dated 19.08.2020
Ex.P.7(a) Signature of PW.2
Ex.P.7(b) Receipt of Samastha Hospital Pvt. Ltd., Ex.P.8 Statement of bank account Ex.P.9 Statement of defendant before police Ex.P.10 Statement of bank account Ex.P.11 Letter of nominee registration Ex.P.12 Tax paid receipt / 38 / O.S.No.1496/2021 Ex.P.13 Document of handing and taking of house hold articles Ex.P.14 Tax paid challan
3. List of witnesses examined on behalf of defendant:
D.W.1 Sharath K.,
4. List of documents exhibited on behalf of defendant:
Ex.D.1 Statement of bank account
(YASHAWANT R. TAWARE),
XXXIX Addl. City Civil & Sessions Judge,
Bangalore City.
Digitally signed
by YASHWANT
YASHWANT RAMAKRISHNA
RAMAKRISHNA TAWARE
TAWARE Date:
2024.03.12
12:00:37 +0530
/ 39 / O.S.No.1496/2021
Judgment pronounced in the open Court (Vide separate Judgment) :
ORDER The suit of the plaintiff is hereby partly decreed with costs in the following terms; It is hereby ordered that, the plaintiff is entitled for partition and separate possession of her half share in the plaint schedule 'B' & 'C' properties by metes and bounds.
Draw up preliminary decree accordingly.
(YASHAWANT R. TAWARE), 39th ACC&S Judge, Bangalore.