Karnataka High Court
Sadiq Bashirahmad Hanchinmani vs Sri.Bashirahmad Khatalsab on 22 November, 2024
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 22ND DAY OF NOVEMBER 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 4095 OF 2013
BETWEEN:
SADIQ S/O. BASHIRAHMAD HANCHINMANI,
AGE: 33 YEARS,
OCC: BUSINESS,
R/O. 1ST FLOOR 'ANMOL MANZIL',
5TH CROSS, BEHIND SANGKAM HOTEL,
AZAD NAGAR, BELGAUM.
...APPELLANT
(BY SRI. SHAILESH MADIYAL, SENIOR COUNSEL FOR SRI. ROHIT
SINGH AND SRI. SAJID AHMED GOODWALA, ADVOCATES)
AND:
1. SRI. BASHIRAHMAD KHATALSAB
HANCHIMANI, AGE: MAJOR,
OCC: NIL, R/O.H.NO.3703/4,
DARBAR GALLI, BELGAUM.
2. SMT.MEENA MADHUKAR DONGARE,
ASHPAK
KASHIMSA
AGE: MAJOR, OCC: HOUSEWIFE,
MALAGALADINNI
R/O.C/O.R.N.DONGARE,
KADOLKAR GALLI, BELGAUM.
...RESPONDENTS
Location:
HIGH
COURT OF (BY SRI. A.P.MURARI, ADVOCATE FOR R2; APPEAL IS DISMISSED
KARNATAKA AGAINST R1)
THIS RFA FILED UNDER SEC.96 R/W. ORDER 41 RULE 1 OF
CPC., PRAYING TO SET ASIDE THE FINAL JUDGMENT AND DECREE
DATED 28.03.2013 PASSED BY II ADDITIONAL SENIOR CIVIL JUDGE,
BELGAUM AND MAY KINDLY PASS THE FOLLOWING RELIEF IN
FAVOUR OF THE APPELLANT:-
1. TO CALL FOR THE RECORDS OF THE COURT BELOW.
2. DECLARING THE APPELLANT IS THE OWNER IN
POSSESSION OF THE SUIT PROPERTY AS PER THE ORAL
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GIFT DECLARED BY THE RESPONDENT NO.1 AND FURTHER
DECLARE THAT THE ALLEGED SALE DEED DATED
03.02.2009 EXECUTED BY THE RESPONDENT NO.1 IN
FAVOUR OF RESPONDENT NO.2 IS ILLEGAL, BOGUS, NULL
AND VOID AND IS NOT BINDING ON THE APPELLANT'S
INTEREST.
3. PERMANENT INJUNCTION, RESTRAINING THE
RESPONDENTS, THEIR AGENTS, HENCHMEN, SERVANTS OR
ANYBODY ACTING ON HIS BEHALF FROM DISTURBING THE
LAWFUL POSSESSION OF THE SUIT PROPERTY.
4. IN THE EVENT THE COURT FINDS THAT THE APPELLANT IS
NOT IN POSSESSION OF THE SUIT PROPERTY THEN
POSSESSION MAY KINDLY BE GRANTED TO THE
APPELLANT.
THIS APPEAL COMING HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 13.11.2024 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
The plaintiff is in first appeal, challenging the judgment and decree, dismissing the suit for the relief of declaration and injunction.
2. The suit was for declaration of the title based on the oral gift of the year 2002, said to have been executed by 1st defendant, the plaintiff's father. The plaintiff also sought a declaration that the registered sale deed dated 03.02.2009 executed by 1st defendant, in favour of 2nd defendant is null and void and not binding on the plaintiff. Consequential relief -3- of injunction is also sought. In the alternative, the plaintiff also sought possession.
3. Brief facts are as under:
1st defendant is the plaintiff's father. 2nd defendant claims to have purchased the suit schedule property from 1st defendant in the year 2009. The plaintiff claims that on 12.12.2002, his father-1st defendant orally gifted the suit property in his favour and since then he has been in possession of the property. In the year 2006, 1st defendant attempted to alienate the suit property, despite the oral gift.
Since the prospective purchaser issued a paper publication inviting objections from anyone claiming right over the property, the plaintiff issued a reply notice cautioning the general public not to purchase the property. The intended purchaser noticing the claim of the plaintiff got the agreement for sale cancelled.
4. The plaintiff also averred that he had reposed confidence in his father and did not get his name entered in the property records pursuant to the oral gift. Taking undue advantage of the situation, the father has entered into a -4- sham sale transaction with second defendant through a registered sale deed dated 03.02.2009.
5. The plaintiff contends that the father could not have sold the property as he had already divested ownership and possession over the property on 12.12.2002 when he orally gifted the property to the plaintiff. The plaintiff would also contend that oral gift is evidenced in a declaration dated 12.12.2002, on a stamp paper.
6. It is also pleaded that when the agreement for sale executed by 1st defendant, in the year 2006 was cancelled, the plaintiff repaid the advance consideration amount paid to 1st defendant by the intended purchaser.
7. The plaintiff also pleaded that he had inducted a tenant in the suit property.
8. The First defendant who is plaintiff's father and alleged donor remained ex-parte.
9. Second defendant contested the suit denying the oral gift. 2nd defendant asserted that 1st defendant was the owner of the property till he executed the sale deed on 03.02.2009. The sale deed is duly registered for a valid -5- consideration. Pursuant to the sale, 2nd defendant has acquired title as well as possession.
10. The Trial Court dismissed the suit by holding that the alleged oral gift is not proved. The Trial Court also held that a plea of tenancy raised by the plaintiff is not established. The Trial Court disbelieved the alleged declaration of oral gift. The Trial Court also held that the plaintiff has failed to establish possession and without possession there cannot be a valid gift.
11. Sri. Shailesh Madiyal, learned Senior counsel appearing for the plaintiff/appellant would raise the following contentions:
a) The declaration of oral gift dated 12.12.2002, in writing, is not disputed by the father/defendant No.1.
Said declaration is made when there was no dispute. The Trial Court could not have disbelieved Ex.P-21-the declaration of gift dated 12.12.2002.
b) The plaintiff's reply notice dated 8.1.2006 through a paper publication marked at Ex.P-5 at a time when there was no dispute between the plaintiff and -6- defendant No.2 would demonstrate that the plaintiff had acquired his title over the property under the oral gift of December 2002. Month and year of oral gift mentioned in the reply would be sufficient to hold that gift took place. The Trial Court erred in disbelieving the oral gift because the date of the oral gift is not mentioned in the reply notice.
c) The plaintiff has produced documentary evidence to prove repayment of Rs.2,00,000/- the consideration amount, when the agreement was executed by the father to a third party was cancelled in 2006. The account from which the payment is made does belong to the plaintiff though the account is standing in the name of the proprietary concern, which incidentally is the name of the plaintiff's father. Trial Court erred in holding that payment by the plaintiff is not proved.
d) The Trial Court could not have disbelieved the declaration of oral gift because the seal on the stamp paper is dated 13.08.2002 and the stamp paper was sold on 06.09.2002. The variation in the date of sale of the stamp paper and the date mentioned against the -7- rubber stamp on the stamp paper has nothing to do with the validity of the gift dated 12.12.2002.
e) The Trial Court could not have discarded the evidence relating to the oral gift on the premise that it has already given a finding that 1st defendant has not divested ownership of the property. The Trial Court should have considered the evidence in support of the oral gift before forming any prior opinion on the title. The Trial Court could not have overlooked the evidence relating to the oral gift resting on its erroneous assumption that the ownership of the property is not divested by 1st defendant.
f) Ex.P-19 is the notice issued by the plaintiff to the tenant to repay the arrears of rent. The fact that the plaintiff has issued notice to the tenant occupying the suit property would demonstrate that the plaintiff has been exercising his right of ownership over the property.
g) The plaintiff has also produced bank accounts to show that the tenant has paid an advance security deposit -8- and has regularly paid the rent amount to the account of the plaintiff. These documents prove tenancy, possession and plaintiff's title.
h) To be a valid gift, it does not require actual physical transfer of possession. Even if it is a constructive possession, then also the gift is valid under the Mohammedan law. The Trial Court committed an error in not upholding the gift for want of proof of transfer of actual possession.
i) The purchaser though filed a written statement, did not personally lead evidence, and has chosen to lead evidence through the Power of Attorney holder and the evidence of the Power of Attorney holder is hearsay and inadmissible.
12. Sri Murari, the learned Counsel appearing for respondent No.2 raised the following contentions.
a) The alleged oral gift is unbelievable given the fact that there was no entry in the property records based on alleged oral gift, ever since the alleged gift of 2002. -9-
b) The notice issued by the plaintiff as a reply to the public notice cautioning the purchaser, does not disclose the date of the alleged oral gift.
c) The alleged declaration of gift reduced into writing on 12.12.2002 is written on a stamp paper issued in the month of August 2002, sold in September 2002 and the said document marked at Ex.P.21, does not tally with another alleged declaration of gift dated 12.12.2002, which is suppressed by the plaintiff and produced by 2nd defendant and marked at Ex.D.4.
d) The endorsement on the agreement for sale cancelling the agreement, to which, the plaintiff is also a signatory, does not disclose anything about the alleged oral gift.
e) The father/defendant No.1 did not contest the suit and the suit was filed in collusion with defendant No.1.
f) The family members of the plaintiff particularly, the mother should have been examined to prove the alleged gift when it is stated by PW.2 that the mother
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of the plaintiff was present when the alleged gift was made.
g) The additional document produced by the plaintiff pursuant to the directions issued by this Court, namely the registered mortgage deed of 2003, executed by defendant No.1 would clearly demonstrate that the alleged oral gift was never made and defendant No.1 exercised his ownership over the property till he sold the property to 2nd defendant in 2002.
h) The property records produced by defendant No.2/respondent No.2 by way of an additional document before this Court would disclose the fact that defendant No.1 mortgaged the property and repaid the loan.
13. This Court has considered the contentions raised at the bar and perused the records. The following points arise for consideration.
(a) Whether the parties to the proceeding have made out a case for production of additional documents.
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(b) Whether the appellant has proved the oral gift dated 12.12.2002?
14. Interlocutory applications:
(a) Both sides filed interim applications seeking production of additional documents and submissions are made on those applications as well.
(b) After considering the entire materials placed before the Trial Court, this Court has also perused the additional documents produced by both sides.
I.A.No.1/2014 is filed by the plaintiff seeking production of additional documents. One of the documents is the police complaint dated 27.01.2009 lodged by the plaintiff. Another document is the copy of the objection filed by the plaintiff before the Sub-Registrar cautioning the Sub-Registrar not to register the documents in case presented by the plaintiff's father. Another document is the copy of the property extract for the year 1964 onwards. Another document is the application dated 24.02.2009 submitted to the Surveyor, Belgaum to enter the name of the plaintiff in the property record. Another document is dated 03.03.2009, is the copy of the objection filed to the change in mutation pursuant to
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the registered sale deed executed by the father of the plaintiff. Other two documents are the account statements in Samarth Urban Credit Co-operative Society and HDFC Bank. Another document is the complaint dated 27.03.2010 filed before the Deputy Superintendent of Police, Belgaum which is subsequent to the suit. Another document is the endorsement given by the Police on 31.05.2010 pursuant to the complaint dated 27.03.2010.
(c) Among these documents, except the property record extract and bank statements the other documents do not have any bearing on the merits of the matter. The complaint to the police allegedly 3 days before the sale in favour of 2nd defendant and objection before the sub- registrar can have some relevancy. However they do not come to the aid of the plaintiff to establish oral gift in the light of the discussion below on the said oral gift. The property record extract and Bank statements are produced before the Trial Court as well. The property extracts and bank statement produced cover a larger period as compared to the documents produced before the Trial Court. Hence
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those documents are considered and discussed below in this judgment.
(d) As far as the photographs of the suit property, are concerned, learned Senior counsel appearing for the appellant during the course of hearing has submitted that they will not rely on the said photographs.
(e) Thus, except the property extract, bank statements, and the compliant before the sub-registrar, other documents in I.A. No.1/2014 are not relevant and necessary to adjudicate the controversy in this appeal. Accordingly, I.A.No.1/2014 is allowed in part.
(f) The application at I.A.No.1/2016 is filed to produce two letters issued by Kannadamma newspaper and also the receipt. On going through the said application, this Court does not find any reason to allow the said application as the document sought to be produced are relating to the public notice in Kannadamma newspaper. Those documents have nothing to do with the merits of the case where the Court is required to decide on the legality of the oral gift pleaded by the plaintiff. Hence, those documents are not
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relevant and necessary for adjudication of the case on merits. Hence, I.A.No.1/2016 is dismissed.
(g) The application at I.A.No.6/2016 is filed for production of additional documents and the appellant intends to produce the records pertaining to the criminal case filed by respondent No.1 against respondent No.2. Said document is relating to a proceeding under Section 138 of Negotiable Instruments Act. In the said proceeding, defendant No.1 has stated that he has executed an oral gift in favour of his son- plaintiff and it is further stated the cheque issued by defendant No.2 for Rs.23 lakhs is dishonoured. Hence, a criminal case was filed for offence under Section 138 of Negotiable Instruments Act in C.C.No.1290/2009. It is relevant to note that defendant No.1 has not challenged the sale deed. The sale deed would reveal that the consideration amount is Rs.35 lakhs is paid. Hence, the documents relating to criminal case will have no bearing on the outcome of the appeal. Even if agreed consideration amount is not paid the remedy for the vendor is to sue for consideration amount. Hence, the said documents are not relevant for
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adjudication of the case, accordingly I.A.No.6/2016 is dismissed.
(h) Learned counsel for respondent No.2 has filed application at I.A.No.2/2024 seeking leave to produce additional documents. One of the documents is the copy of the property extract covering certain period not covered in the property of the suit property produced before the Trial Court. The contents of the said property extract pertaining to the suit property are not disputed by the appellant. Since it is a public record pertaining to the suit property, same is taken on record. The other documents produced along with the application are not necessary and relevant for adjudication of the controversy relating to oral gift. Thus, the application at I.A.No.2/2024 is allowed in-part.
(i) I.A.No.3/2024 is filed by the appellant seeking leave of the Court to produce copy of the registered mortgage deed and bank statement. Since this Court has directed production of the copy of the mortgage deed, the same is taken on record and considered in the main judgment. Accordingly, I.A.No.3/2024 is disposed.
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15. The core issue involved in this appeal is, 'whether the oral gift of 12th December 2002 is established'. If so, then consequences would follow and defendant No.1 cannot alienate the property to defendant No.2 and defendant No.2 does not acquire the title over the suit property. The sale by defendant No.1 in favour of defendant No.2 becomes invalid.
16. Learned Senior counsel appearing for the plaintiff/appellant to prove the oral gift, emphasized on the paper publication, as well as cancellation of the agreement for sale, which took place in the year 2006. The main thrust of the contention is that, in the year 2006, there was no dispute between the plaintiff and defendant No.2. Defendant No.2, who claims to have purchased the property in 2009, was nowhere in the picture when the documents evidencing oral gift came into existence. Thus, it is urged that the paper publication marked at Ex. P5 and the cancellation agreement would demonstrate the oral gift.
17. Indeed it is true that the paper publication of 2006, hints or indicates about the possibility of an oral gift in December 2002 but does not conclusively prove the same. The reason is, the publication or claim relating to oral gift is
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not by the father-alleged donor. It is by the done. The cancellation agreement of 2006 reveals that the intended purchaser who wanted to purchase the property cancelled the agreement for sale. However, what stares at the outset is there is no change in the property records pursuant to the alleged oral gift. More importantly, name of donee is not entered in the property records even after an attempt by defendant No.1 to sell the property 2006. Even seven years after the alleged oral gift, there was no change in the property records reflecting the name of the alleged donee as the owner of the property. Now there is a registered sale deed in favour of defendant No.2.
18. In the aforementioned scenario, the plaintiff who seeks to dislodge a registered sale deed executed by his father, based on the alleged oral gift said to have been executed seven years before the sale to defendant No.2, must adduce credible evidence to support his plea of oral gift. The paper publication by the alleged done, hinting indicating or suggesting an oral gift, and cancellation of agreement for sale pursuant to the paper publication, by themselves are not sufficient to dislodge other documentary
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suggesting contrary to the plaintiff's claim of oral gift. This is more so, in the context of a registered mortgaged deed in the year 2003, executed by alleged donor-defendant No.1, (Alleged oral gift is of 2002) wherein, defendant No.1 has mortgaged the property as an owner of the property. More importantly the plaint averments would disclose that the plaintiff was aware of said mortgage, as he has made a claim that he is the real borrower and father is just a name lender.
19. The registered mortgage deed of the year 2003, was not produced before the Trial Court. This Court after hearing the parties for some time, felt that the registered mortgage deed may be a relevant piece of evidence and directed the parties to produce the same. Later same is produced by the appellant.
20. The mortgage deed would reveal Sri.Bashirahamad Khatalsab Hanchinamani who is defendant No.1 is described as borrower. And mortgage deed is executed by said Bashirahamad Khatalsab Hanchinamani along with two other persons namely Noor K.Hanchinamani and Gous M.Hanchinamani as guarantors. The deed is dated 18.08.2003 and registered on the same date. Page No.4 of
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the said mortgage deed contains a statement that borrower is the owner and in actual physical possession and enjoyment of the property bearing CTS No.1906/1A measuring 102 square meters with building having Municipal No.1906/1. From the contents of the mortgage deed it is apparent that the loan amount is borrowed by defendant No.1.
21. Though the plaintiff who is the son of defendant No.1 contends that he has borrowed the loan and repaid the loan, and the mortgage deed is executed by defendant No.1 to secure the loan availed by the plaintiff, the mortgage deed does not say so. The contents of the registered mortgaged deed would disclose that defendant No.1 as the owner of the property has borrowed loan for himself and mortgaged the suit property as a security for the loan.
22. Though the plaintiff claims that he borrowed and repaid the loan, the said contention is contrary to Section 92 of the Indian Evidence Act, 1872. The plaintiff's case does not fall under any of the exceptions to Section 92 of the Indian Evidence Act, 1872 to accept the contention that the
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mortgage deed executed by the plaintiff and 1st defendant was just a name lender.
23. The contents of the mortgage deed would demonstrate that 1st defendant exercised ownership over the property in the year 2003, subsequent to the alleged oral gift of 2002. It is relevant to note that in the plaint itself the plaintiff has pleaded about the registered mortgage deed of 2002 where the plaintiff contends that he borrowed loan in the name of defendant No.1 by mortgaging the said property. This would clearly demonstrate that even in the year 2003, the plaintiff himself allowed 1st defendant to execute the mortgage deed by projecting 1st defendant as the owner. Thus, the plaintiff is estopped from raising a contrary plea.
24. It is relevant to note that when public notice was issued by the prospective purchaser on 01.01.2006 to purchase the property, the said purchaser in this notice marked at Ex.P.4 has stated that the property is mortgaged to a co-operative society. In addition, it is also stated in the said notice that the vendor (defendant No.1) "has not committed the schedule property to anyone else either on
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lease, gift or in any other manner". To the said notice the plaintiff replied by issuing a reply in the form of another public notice dated 08.01.2006 marked at Ex.P.5. Said reply notice though quite elaborate and contains many details, and is issued in the name of an advocate, it does not disclose the date of declaration of oral gift.
25. It is further relevant to note though the intended transaction covered under the public notice dated 01.01.2006 was cancelled, and the plaintiff is a signatory to the said cancellation agreement which is endorsed on the agreement for sale between the said intended purchaser and 1st defendant, the recital canceling the agreement does not refer to any oral gift, though the plaintiff is a signatory to the said cancellation deed. The inference coming from the public notice at Ex. P5 or cancellation agreement is not good enough to dislodge the inference from the mortgage deed which is registered and the said document is undisputed.
26. It is indeed true that the month and the year of the oral gift have been mentioned in the reply notice marked at Ex.P.5. However, the date of oral gift is not mentioned. In certain circumstances, omission to mention the date, may
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not by itself lead to the conclusion that the transaction namely the gift has not taken place. However, given the other surrounding facts and circumstances of the case, this aspect assumes importance.
Those circumstances are:
(a) There is a clear overwriting of the name of the purchaser on the stamp paper and that too in a different ink.
(b) Though Ex.P.21, the alleged declaration of gift dated 12.12.2002 is said to have been executed on the said date, the stamp paper was issued in August 2002. It is not the plaintiff's case that the stamp paper was procured 3-4 months before the alleged oral gift dated 12.12.2002 and his father procured the stamp paper to make a declaration of oral gift in writing.
(c) One more document allegedly declaration of oral gift is executed on a stamp paper dated 12.12.2002. Said declaration is suppressed in the plaint. Second defendant has produced it at Ex D-4.
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Said document though allegedly executed on 12.12.2002, recites about the charge over the property created in 2003.
(d) If compared with the ink on the remaining contents of the stamp vendor's endorsement, the difference in the ink is apparent, suggesting overwriting the name of the stamp paper purchaser-defendant No.1, on the name of some other parson-the original purchaser of the stamp paper.
27. It is not the case of the plaintiff that oral gift was contemplated in August 2002 and stamp paper was purchased in August 2002, and was executed in December 2002. In this background, the date of purchase of stamp paper in August 2002 with the overwritten name of defendant No.1-purchaser, on the name of another person, probably the first purchaser of the stamp paper leads to a suspension about the authenticity of Ex.P-21.
28. The plaintiff has suppressed the alleged declaration dated 12.12.2002. Said declaration is produced by defendant No.2 and marked at Ex.D.4. It is the certified
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copy of the alleged declaration relating to the oral gift and is issued by ADLR, Belagavi. The said declaration is on a stamp paper dated 12.12.2002 and the stamp paper appears to have been purchased in the name of defendant No.1. However, the recital in the said declaration of gift (as fairly admitted by learned senior counsel appearing for the plaintiff/appellant) would also disclose about the existence of a charge over the property. The records would disclose that the charge was created in the year 2003 after the execution of the alleged gift deed. However, said charge created in 2003, is mentioned in the declaration of gift dated 12.12.2002. Thus, Ex.D.4 casts suspicion about its authenticity. Indeed, Ex.D.4 is not produced by the plaintiff. However, the said document is not disputed when it was tendered in evidence by defendant No.2. Thus, the fact that the declaration of oral gift dated 12.12.2002 in Ex-D4, contains a recital about the charge over the property which was created in 2003, inevitably points to the conclusion that the said document is antedated.
29. The Trial Court doubted the authenticity of oral declaration of gift on the premise that there was no
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reference to the alleged declaration of oral gift in writing in the reply notice. Though the plaintiff went to the extent of issuing public notice when he learnt that his father had proposed to alienate the property, which according to the plaintiff was already gifted to him four years before the father attempted to sell the property, did not choose to get his name entered in the property records, even after the cancellation of agreement for sale. The plaintiff is a signatory to the transaction canceling the agreement for sale by defendant No.1 and the prospective purchaser. However in the said cancellation agreement, absolutely no reference is made to the alleged oral gift in favour of the plaintiff.
30. The omission on the part of the plaintiff to take steps to enter his name in the property records, immediately after the gift or at least after the father attempted to alienate the property in the year 2006, would lead to the suspicion that such a gift deed was executed.
31. Overall appreciation of records and oral evidence, on the preponderance of probability suggests the creation of ante-dated declaration of oral gift. The preponderance of probability also suggests that the ante-dated declarations of
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oral gifts are created to suit the statement made in the paper publication to dissuade the purchaser from going ahead with the sale in 2006.
32. The very averments in the plaint and evidence on record clearly demonstrate that the plaintiff was aware that his father mortgaged the property in the year 2003 claiming himself as the owner of the property. Even if the plaintiff contends that he was the real borrower and he repaid the amount, nothing prevented the plaintiff from joining the execution of the mortgage deed by the father by making a clear recital in the mortgage deed that he is the owner in terms of oral gift and father is joining the mortgage deed as a consenting party to facilitate the registration of the mortgage deed.
33. Though it is urged that the plaintiff has repaid the consideration amount received by the father when the agreement for sale was cancelled in 2006, and the plaintiff has received the rental income from the tenant, this Court cannot accept the ownership of the plaintiff based on the evidence relating to repayment of advance consideration amount by the plaintiff and receipt of rental income from a
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tenant, who according to the plaintiff was inducted as a tenant by the plaintiff.
34. Assuming that the plaintiff has repaid the consideration amount to the party who cancelled the agreement with his father, said payment does not confer the title over the property and said payment does not demonstrate oral gift, in the light of other documentary evidence and circumstances discussed above. The act of the son repaying the consideration amount to the party, who had entered into an agreement for sale with the father which eventually was cancelled, cannot lead to the inference that payment is made in exercise of right of ownership pursuant to an oral gift which is seriously disputed. It can also be a good gesture on the part of the son or probably the son wanted the property to be retained for his benefit hoping that it would one day come to him from his father.
35. Likewise, payment of a certain amount to the account of the plaintiff by a person, who claims to be a tenant under the plaintiff in respect of the suit property, cannot lead to a conclusion that the plaintiff has inducted said person as a tenant. The lease deed with the tenant was
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not produced before the trial Court. An attempt is made before this Court to produce the lease deed. The same is not read in evidence as the lease deed is unregistered and is not duly stamped.
36. Though it is urged that a notice was issued to the tenant by the plaintiff through his advocate to recover the arrears of rent, it is noticed that said notice was not sent to the address where the suit property is located. It is allegedly sent to the residential address of the alleged tenant.
37. Moreover, given the fact that the property was sold in the year 2009 by defendant No.1 and alleged payment of rent and security deposit is before 2009, even assuming that a person was inducted into the property as a tenant, such person can be considered as a tenant of defendant No.1. Merely because the alleged tenant made payment of rent and security deposit to the account of the plaintiff, it cannot be said that plaintiff was the owner in terms of the oral gift given the fact that defendant No.1 is the father of the plaintiff. The payment of rent, if any, paid to the account of the plaintiff cannot be interpreted to say that the plaintiff was the owner on account of oral gift
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particularly in the light of the discussion on the registered mortgage and dubious declaration of oral gift on a stamp paper. Such payment of rent if any can also be on account of some internal arrangement between the father and the son, which cannot be ruled out. The father-defendant No.1 remained ex-parte. Though there is no plea that plaintiff and defendant No.1 have colluded, that appears to be the case, from the facts and circumstances already discussed above.
38. Sri.Sailesh Madihal, the learned Senior counsel also contended that the trial Court appears to have not attached weight to the oral evidence relating to the oral gift and the declaration of oral gift, by observing that the ownership of defendant No.1 is not divested. Though the approach of the Trial Court appears to be erroneous, even on re appreciation of both oral and documentary evidence, the conclusion of the Trial Court, on the validity of oral gift cannot be termed as erroneous.
39. The plaintiff examined a witness, who is said to be the witness to the oral gift of the year 2002. However property records did not reflect such a gift. On the other hand they indicate that defendant No.1 was the owner even
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after the year 2002. Plaintiff himself was aware that defendant No.1 executed a mortgage deed in 2003. Since the plaintiff contends that the he is the real owner and borrower and defendant No.1 was just a name lender, then he should have examined his father to prove the contention. Assuming that such a transaction has taken place, by allowing name of the father to continue in the property records, by allowing him to mortgage the property by executing a registered mortgage deed as a owner, the plaintiff is estopped from taking a contrary stand especially when a third party right is created. Thus, the plaintiff cannot question the sale deed executed by defendant No.1 in favour of defendant No.2, when the property records and encumbrance certificate did not show any iota of evidence that the plaintiff is the owner of the property. By relying on the oral evidence, reply notice and cancellation agreement, and some payment in to the account of plaintiff by alleged tenant, it cannot be said that an oral gift is proved. The evidence on record already discussed above would suggest that the plea of oral gift is untenable and declaration of oral gift is concocted. Hence even on re appreciation of evidnce
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relating to oral gift, this Court does not find any valid reasons to uphold the claim based on oral gift.
40. It is also relevant to note that defendant No.2 purchased the property under a registered sale deed. Defendant No.1 has not questioned the said sale deed. Though the plaintiff contends that the sale deed is bogus and sham, there is no evidence to support such a claim. Defendant No.2 could not have noticed the alleged oral gift of 2002 when no property records were standing in the name of the plaintiff based on the alleged oral gift. In such a scenario the person pleading oral gift, seven years after the alleged oral gift and after the sale transaction, should come out with credible evidence. The evidence which by long drawn reasoning, which may tentatively indicate that the alleged oral gift was made, is not sufficient to uphold the oral gift when the third party rights are created under a registered deed for valuable consideration.
41. Though it is urged that defendant No.2 did not step into the witness box and he was examined through the power of attorney holder, what is required to be noticed is that entire case revolves around the proof of alleged oral gift
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of 2002 and defendant No.2 has purchased the property in 2009. And to disprove the oral gift defendant No.1 need not personally lead evidence. The entire burden is on the plaintiff. In the facts of this case, the power of attorney holder is competent to lead evidence. The Dw1 has produced the public records and the alleged declaration of gift made by the defendant No.1 (Ex-D4), to disprove the plaintiff's claim.
42. For the aforementioned reasons, the appeal fails. Accordingly dismissed.
43. The interlocutory applications seeking production of additional evidence are disposed of as indicated above and other applications are not connected with the merits of the appeal are disposed of by separate order.
44. No order as to cost.
Sd/-
(ANANT RAMANATH HEGDE) JUDGE RKM/AM ...