Bangalore District Court
Smt.Bibi Jan vs Smt. K.Rajeshwari on 15 November, 2018
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF THE XIV ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.28]
Present: Sri.G.A.Mulimani, M.A., LL.B. (Spl.)
XIV ADDL. CITY CIVIL JUDGE
Dated this the 15th day of November, 2018
O.S.No.7592/2004
Plaintiff/s : Smt.Bibi Jan,
Aged about 41 years,
W/o M.Sardar,
Residing at No.28,
2nd Cross,
Indiranagar Slum Extension,
Rajajinagar,
Bangalore -560 010
(By Sri.N.Subba Shastry, Advocate)
- Vs -
Defendant/s :Smt. K.Rajeshwari,
Aged about 65 years,
W/o S.Vadivelu,
No.185, 12th main road,
III stage, Manjunathanagar,
Rajajinagar,
Bangalore-5460 010
(By Sri.A.K., Advocate)
2 O.S.No.7592/2004
Date of institution
of the suit : 08-10-2004
Nature of the suit : Declaratin, possn,
[suit on pronote, suit and mesne profits.
for declaration and
possession, suit
for injunction]
Date of the commencement
of recording of the evidence: 08-10-2007
Date on which the
Judgment was pronounced : 15-11-2018
Year/s Month/s Day/s
Total Duration 14 01 07
JUDGMENT
This suit is filed by the plaintiff against the defendant for the relief of declaration, possession, mesne profits and other reliefs.
2. The brief facts of the plaintiff's case are that :
The suit schedule property was allotted to the plaintiff's mother Mehaboobi from BDA , and also BDA also issued possession certificate and lease-cum-sale deed. After the lease-cum sale deed is over, the BDA executed an absolute sale deed in favour of Smt.Mehaboobi. The plaintiff's mother Mehaboobi being the absolute owner and 3 O.S.No.7592/2004 in possession and enjoyment of the suit schedule property, and out of her own money built a house with asbestos sheet roofing and she was paying tax to the BBMP, the plaintiff and her mother are governed by Mohammedan Law, said Mehaboobi executed a registered deed of gift dt.15.2.2003 in favour of the plaintiff in respect of the suit schedule property, which is her self acquired property, the plaintiff accepted the gift, and in pursuance of the said gift deed, the plaintiff's mother transferred her right, title, interest and possession of the schedule property to the plaintiff and the plaintiff is in possession and enjoyment of the same. The original documents kept in suit property is being misplaced or stolen and the plaintiff produced the certified copies. The katha of the suit schedule property in this nine months did not change to the name of the plaintiff.
On 22.9.2004 the defendant forcibly occupied the suit schedule property by dispossessing the plaintiff, when the plaintiff was away from the suit schedule property, after returning home after a week with her husband the plaintiff noticed that the suit schedule property which is adjacent to her residence is occupied by the defendant and renovating by the defendant, the plaintiff questioned the defendant so, then the defendant told her that she has purchased the suit schedule property and she applied for grant of certified copy of the same from the Sub Registrar on 4.10.2004.4 O.S.No.7592/2004
The gift deed dt.15.12.2003 executed by her mother has right and title to the suit schedule property is very much subsisting and the defendant is not deriving any right, title, or interest over the alleged registered sale deed dt.16.9.2004 said to have been executed in her favour. The registered gift deed in her favour dt.15.12.2003 is earlier at point of time when the same is subsisting the defendant cannot get any right, title or interest over the suit schedule property. The sale deed dt.16.9.2004 is not binding on the plaintiff. Hence, has filed this suit.
3. In pursuance of the suit summons, the defendant appeared through her counsel and filed written statement denying all the allegations leveled against her as false, inter-alia contending that, the suit is liable to be dismissed for non joinder of necessary parties, and has not added the executant Mehaboobi as a party to the suit, hence liable to be dismissed. The defendant is a bonafide purchaser of the suit schedule property for valuable consideration, without notice of the alleged gift deed in favour of the plaintiff. The encumbrance certificate does not reflect the said alleged gift.
Further contended that all the title deeds of the suit schedule property are in the power, possession and custody of this defendant having obtained the same from her 5 O.S.No.7592/2004 vendor Smt.Mehaboobi , Jameela and Bakhash children of said Mehaboobi were residing with the said Mehaboobi are also witness to the said sale deed and she was made to believe that she was been taken to an eye hospital, surgery and her thumb impression was required to consent for surgery, when she came to know that the gift deed was fraudulently got executed she immediately approached the Masque Committee viz., Masjid -E-MECCA, Indira colony, Rajajinagar, Bangalore on July 4th, the Masque Committee summoned the plaintiff and her husband one Mr. Sardar to settle the issue, and on 4th July 2004 at about 8.30 p.m. a settlement took place, as per the award of the Masjid - Committee, according to which the plaintiff agreed to surrender the original gift deed after receiving a sum of Rs.10,000/- by way of cash in presence of the witnesses, i.e. her husband, Sardar and other witnesses such as Razia and Afzal Pasha and accordingly the masque- vice-President has duly affixed the signature. Hence, prayed for dismiss the suit.
4. On the basis of the above pleadings, materials and documents, my predecessor in office has framed the following issues:
6 O.S.No.7592/2004ISSUES
1. Whether plaintiff proves that the sale deed dated 16.9.2004 is not binding on the plaintiff ?
2. Whether the suit is bad for non joinder of necessary parties?
3. Whether the defendant proves that she is the bonafide purchaser of suit schedule property for valuable consideration as contended in paragraph 3 of the written statement?
4. Whether plaintiff is entitled for possession, mesne profits and other reliefs?
5. What order or decree?
5. In order to prove these issues, the plaintiff is examined as P.W.1 got document marked Ex.P1 to 4 and she has examined 2 witnesses as P.W.2 and 3 and closed her side. On the other hand defendant examined her 3 witness as D.W.1 to 3 and she herself examined as D.W.4 and got documents marked Ex.D2 to 8, and two documents were marked as Ex.D1 and D1 by way of confrontation and another witness is examined as D.W.5 and scribe is examined as C.W.1 and no documents got marked as 7 O.S.No.7592/2004 exhibits and closed the side of defendants evidence, and case is posted for arguments.
6. Heard the arguments of both the sides. The Learned counsel for the plaintiff has relied the following citations.
1. ILR 1992 KAR 2823
2. (2006) 5 Supreme Court Cases 558
3. (1996) 6 Supreme Court Cases 44
4. ILR 2016 Kar.842
5. ILR 2016 Kar.3281
6. ILR 2003 Kar.3042
7. (1991) 1 Supreme Court Cases 715
8. AIR 2002 SC 959
9. The Government Grants Act, 1895
10. Section 34 of the Specific Relief Act
7. The learned counsel for the defendant has relied the following citations.
1. AIR 1956
2. AIR 1968
3. ILR 1996 KAR 1711
4. ILR 2016 KAR 942
5. AIR 1960 8 O.S.No.7592/2004
6. ILR 2006
7. ILR 2003 KAR 3042
8. (2001) 6 SC 34
9. AIR 1964 SC 907
8. My answers on the above issues are as follows :
Issue No.1 : In the negative,
Issue No.2 : Answer accordingly,
Issue No.3 : In the affirmative,
Issue No.4 : In the negative,
Issue No.5 : As per final order
for the following:
REASONS
9. ISSUE No.1 TO 4: These issues are interlinked,
hence, to avoid the repetition of the same facts, I have discussed these issues simultaneously for my common consideration.
10. It is the specific case of the plaintiff that, the suit schedule property was allotted to the plaintiff's mother Mehaboobi from BDA , and also BDA also issued possession certificate and lease-cum-sale deed. After the lease-cum sale deed is over, the BDA executed an absolute sale deed 9 O.S.No.7592/2004 in favour of Smt.Mehaboobi. The plaintiff's mother Mehaboobi being the absolute owner and in possession and enjoyment of the suit schedule property, and out of her own money built a house with asbestos sheet roofing and she was paying tax to the BBMP, the plaintiff and her mother are governed by Mohammedan Law, said Mehaboobi executed a registered deed of gift dt.15.2.2003 in favour of the plaintiff in respect of the suit schedule property, which is her self acquired property, the plaintiff accepted the gift, and in pursuance of the said gift deed, the plaintiff's mother transferred her right, title, interest and possession of the schedule property to the plaintiff and the plaintiff is in possession and enjoyment of the same. In pursuance of the gift deed delivering all the original title deeds pertaining to the suit schedule property and she kept the same in the suit schedule property, and she is an illiterate women she don't reading and writing Kannada and she understood the contents of the deed referred to above read over to her. The original documents kept in suit property is being misplaced or stolen and the plaintiff produced the certified copies. The katha of the suit schedule property in this nine months did not change to the name of the plaintiff.
11. It is further case of the plaintiff is that, on 22.9.2004 the defendant forcibly occupied the suit schedule 10 O.S.No.7592/2004 property by dispossessing the plaintiff, when the plaintiff was away from the suit schedule property, after returning home after a week with her husband the plaintiff noticed that the suit schedule property which is adjacent to her residence is occupied by the defendant and renovating by the defendant, the plaintiff questioned the defendant why she is doing so and what authority to do so, then the defendant told her that she has purchased the suit schedule property from its previous owner and she has got every right to do so, saying so the defendant threw a Xerox copy of the sale deed on her face, the plaintiff got it read over to her and having understood that the defendant obtained a sale deed which is dt.16.9.2004 (registered deed) and she applied for grant of certified copy of the same from the Sub Registrar on 4.10.2004. The gift deed dt.15.12.2003 executed by her mother has right and title to the suit schedule property is very much subsisting and the defendant is not deriving any right, title, or interest over the alleged registered sale deed dt.16.9.2004 said to have been executed in her favour. The registered gift deed in her favour dt.15.12.2003 is earlier at point of time when the same is subsisting the defendant cannot get any right, title or interest over the suit schedule property. The sale deed dt.16.9.2004 is not binding on the plaintiff.
11 O.S.No.7592/200412. It is the specific case of the defendant is that, the suit is liable to be dismissed for non joinder of necessary parties, and has not added the executant Mehaboobi as a party to the suit, hence liable to be dismissed. The defendant is a bonafide purchaser of the suit schedule property for valuable consideration, without notice of the alleged gift deed in favour of the plaintiff. The encumbrance certificate does not reflect the said alleged gift within the meaning under Sec.3 of T.P.Act. It is true that katha of the property is not changed in the name of the plaintiff, this only goes to show that there was no gift deed of the suit schedule property in favour of the plaintiff, and there is no delivery of possession of the suit schedule property in favour of the plaintiff. The Islamic Law requires that Gift of immovable property of which the donor is in actual possession is valid ab-intio, unless donor physically departs from the premises on his or her chattels and the donee enters possession. The rule of Islamic law is unaffected by the T.P.Act, in view of Sec.129 of the said Act, the plaintiff was never put in possession and as such no right has been transferred to the plaintiff in respect of the said suit schedule property by virtue of the alleged gift deed, dt.15.12.2003.
13. Further it is the case of the defendant that, all the title deeds of the suit schedule property are in the power, 12 O.S.No.7592/2004 possession and custody of this defendant having obtained the same from her vendor Smt.Mehaboobi , the sale deed dt.24.4.2002 from BDA in favour of the said Mehaboobi, the possession certificate issued by the BDA, dt.21.7.1990. the Raziyabi, Jameela and Bakhash children of said Mehaboobi were residing with the said Mehaboobi are also witness to the said sale deed and she was made to believe that she was been taken to an eye hospital, surgery and her thumb impression was required to consent for surgery, when she came to know that the gift deed was fraudulently got executed she immediately approached the Masque Committee viz., Masjid -E-MECCA, Indira colony, Rajajinagar, Bangalore on July 4th, the Masque Committee summoned the plaintiff and her husband one Mr. Sardar to settle the issue, and on 4th July 2004 at about 8.30 p.m. a settlement took place, as per the award of the Masjid - Committee, according to which the plaintiff agreed to surrender the original gift deed after receiving a sum of Rs.10,000/- by way of cases in presence of the witnesses, i.e. her husband, Sardar and other witnesses such as Razia and Afzal Pasha and accordingly the masque- vice-President has duly affixed the signature. The said settlement only goes to show that there was no gift of the property, the said Mehaboobi was the owner of the suit schedule property as on 16.9.2004. The said Mehaboobi and her children, informed the defendant that the plaintiff was not satisfied 13 O.S.No.7592/2004 with the share given to her from out of the sale proceeds, hence with the ulterior motive and intention to extract money and was suppressing the material facts this suit has been filed.
14. In order to prove the case of the plaintiffs, plaintiff has filed his sworn affidavit in lieu of the chief- examination as P.W.1, wherein she has reiterated the same contents, which she has narrated in her plaint, hence, in order to avoid repetition of the same facts, I have not discussed once again. In support of his oral evidence she has produced 4 documents as Ex.P-1 to Ex.P-4, for the sake of convenience, I have summarized these documents as Ex.P-1 is the certified copy of gift deed, dt.15.12.2003, Ex.P2 and 3 are two encumbrance certificates, Ex.p4 is the certified copy of sale deed, dated 16.9.2004.
15. On the other hand in order to disprove the case, defendant has filed his sworn affidavit in lieu of the chief- examination as D.W.4, wherein she has reiterated the same contents, which she has narrated in her written statement, hence, in order to avoid repetition of the same facts, I have not discussed once again. In support of her oral evidence she has produced 8 documents as Ex.D-1 to Ex.D-8, for the sake of convenience I have summarized these documents as Ex.D1 is the gift deed, dated 15.12.2003, Settlement 14 O.S.No.7592/2004 deed dated 04.07.2004 is also marked as Ex.D1, Ex.D2 is the original sale deed, dt.16.09.2004, Ex.D3 is the original sale deed, dt.24.4.2002, Ex.D4 is the Encumbrance Certificate, Ex.D5 is the possession certificate, Ex.D6 to 8 are the three tax paid receipts.
16. During the cross examination of P.W.1 has categorically stated that, her mother died about 7 years back. On perusal of the pleadings, materials, documents, which clearly demonstrate that, admittedly this suit was filed in the year 2004. The cross examination of P.W.1 commenced on 19.12.2009, prior to 7 months his mother Mehaboobi was alive, and the said Mehaboobi was not a party to the suit, though she was alive as on the date of filing of the suit. Since the plaintiff has sought the relief of declaration, declaring that registered sale deed, dated 16.9.2004 registered in favour of the defendant is not binding on her, and to declare that she is the absolute owner of the suit schedule property. When the registered sale deed, dt.16.9.2004 was sought to be declared as null and void, her mother Mehaboobi was executed the said sale deed, therefore in order to ascertain the truth with respect to due execution of the sale deed her mother is a best witness. Moreover the plaintiff has not examined her mother as a witness in this suit, so for as execution of the gift deed or sale deed the executant Mehaboobi is a very 15 O.S.No.7592/2004 material witness, in the absence of Mehaboobi it is very difficult to find out the truth, as such Mehaboobi is a necessary party to the suit, in the absence of Mehaboobi as a party the suit is bad for non joinder of necessary parties.
17. Further P.W.1 has stated in her cross examination that, her mother was executed gift deed in her favour as she was look after her mother Mehaboobi and she took the Mehaboobi for her eye treatment, further has stated that she don't know who are the witnesses attested to the said gift deed, and her mother handed over the original gift deed to her and she has not produced the said original gift deed, as the original gift deed was kept in her house, and she don't know when her mother handed over the said original gift deed to anybody. Further has stated that as on the date of the gift deed she was resided in the said house, now she is not in possession of said house, now the defendant Rajeshwari is in possession of the said gifted property. On taking into consideration of the above evidence, it clearly demonstrate that the original gift deed is not with the plaintiff, as she has stated that her mother has handed over the said original gift deed to anybody.
18. In the cross examination of D.W.2 and 3 have categorically stated that, in the settlement took place before the Masjid committee, the plaintiff received 16 O.S.No.7592/2004 Rs.10,000/- and handed over the original gift deed to her mother, and the plaintiff, plaintiff's husband and mother came to the masjid committee, and on that day the plaintiff has produced the gift deed executed by her mother, and thereafter plaintiff received 10,000/- rupees and handed over the said gift deed to her mother. In the plaint averment she has stated that the original document kept in the suit property is being misplaced or stolen, but she has not pleaded that her mother handed over the said gift deed to anybody, this is a improvement version. If at all the gift deed was misplaced or stolen, she has to lodge the police complaint regarding misplace or stolen, but the plaintiff has not produced any documents to show that she lodged the police complaint regarding misplace or stolen of the said document. Therefore, her evidence regarding misplace or stolen is not accepted, and also it is not accepted that her mother handed over the gift deed to anybody. On the basis of evidence of D.W.2 and 3 the original gift deed was handed over by the plaintiff to her mother in the settlement before masjid committee after receiving 10,000/- rupees. Therefore, the misplace/stolen as pleaded by the plaintiff is nothing but a cock and bull story.
19. Further P.W.1 has stated in her cross examination that, the khata was not stands in her name, she was applied for change of khata, and she has not produced any 17 O.S.No.7592/2004 document to show that she was applied for khata. She has not produced the affidavit of her mother while applying for khata. Admittedly, khata was not stands in the name of the plaintiff as stated in the above evidence. When the khata was not transferred in the name of the plaintiff by virtue of the gift deed, is clearly shows that the said gift deed was not acted upon. P.W.2 and 3 have categorically stated in their evidence that on 15.3.2012 gift deed was executed by Mehaboobi in favour of her daughter Bibijan, on that day he and his wife Mehaboobi went to Sub Registrar Office along with his father-in-law's friend. Further P.W.2 and 3 have categorically stated that the defendant is in possession of the suit schedule property as on today from the date of execution of sale deed.
20. It is very relevant to discuss the ingredients of the execution of gift deed under Mohammedan Law. There are 3 essentials of a gift under Mohammedan law are under.
a. A declaration of gift by the donor b. An acceptance of the gift, express or implied, by or on behalf of the donee, and c. Delivery of possession of the subject of the gift by the donor to the donee.
18 O.S.No.7592/2004If these conditions are complied with, the gift is complete.
21. So for as one of the essential ingredients of the gift under Mohammedan law is delivery of possession. The P.W.2 none other than the husband of the plaintiff has categorically stated in his cross examination that the defendant is in possession of the suit schedule property as on the date of the execution of the sale deed. The P.W.1 also stated that the defendant is in possession of the suit schedule property, and also pleaded in her plaint that on 22.9.2004 the defendant forcibly occupied the suit schedule property by dispossessing the plaintiff. The sale deed executed by the Mehaboobi in favour of the defendant is on 16.9.2004. According to P.W.2 the defendant is in possession of the suit schedule property from the date of execution of sale deed dt.16.9.2004. The very plaintiff has pleaded in her plaint that, on 22.9.2004, defendant forcibly occupied the suit schedule property by dispossessing her. On taking into consideration of above evidence of P.W.1 and 2, it clearly goes to shows that the possession of the property was not handed over to the plaintiff in pursuance of the gift deed, dt.15.12.2003. In this juncture the learned counsel for the plaintiff has relied the ruling reported in ILR 2016 Kar.842 in Mr.Syeed Basheer Malik and Another V/s Smt.Jameela Begum and others, wherein it has been held;
19 O.S.No.7592/2004" (B) MOHAMMEDAN LAW - 'HIBA' OR 'GIFT- HELD, Hiba does not require registration - FURTHER HELD, Hiba or Gift under Mohammedan Law is a transfer of property made immediately and without any exchange by one person to another and accepted by or on behalf of the latter.
Though Section 123 of the Transfer of property Court, 1882 makes it mandatory that a gift must be effected by a registered instrument, by virtue of Section 129 of the Transfer of Property Act, Chapter VII which deals with gifts under the Transfer of Property Act, does not affect any rule of Mohammedan Law. Therefore, Hiba, the subject matter of whatever value need not be registered as required by Section 123. it can be oral, but it should e adequately proved.- Section 129 of the Transfer of Property Act, preserves the rule of Mohammedan Law and excludes the applicability of Section 123 of the Transfer of Property Act to a gift of an immovable property by a Mohammedan".
Further held that;
20 O.S.No.7592/2004(C) MOHAMMEDAN LAW - 'HIBA' OR 'GIFT' - Essentials of a valid 'Hiba' - HELD, To treat the 'Hiba' as valid there should be declaration of gift by the donor, an acceptance of the gift, express or implied, by or on behalf of the donee, and delivery of possession of the subject of the gift by the donor to the donee. - It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible. Registration of a deed of gift does not cure the want of delivery of possession under Mohammedan Law. There would be gift of immovable property by a husband to the wife or by wife to the husband.".
22. The learned counsel for the defendant also relied the ruling reported in AIR 1956 Travancore-Cochin 268, in Maitheen Beevi Umma V/s Ithappiri Varke. Wherein it has been held;
(C) Mohammedan Law - Gift - Delivery of possession - Onus. Evidence Act (1 of 1872), S.101, S.102, S.103, S.104.
21 O.S.No.7592/2004Further has relied the ruling reported in ILR 2006 Kar.3281 in K.Abdul Ameed Vs Smt. Sabira Begum and Others. Wherein it has been held;
(A) MOHAMMADAN LAW -HIBA-PROOF OF-
Whether gifting of house to wife and children proper and whether the same proved by wife and children-Hiba dated 28- 10-1983 and declaratory affidavit in favour of Hiba dated 22-09-84-HELD- On the date of Hiba dated 28-10-83 defendant did not have any reason to deviate the course of devolution of property according to law amongst his heirs-There is nothing unnatural if the defendant had gifted his house to the plaintiffs who are none other than his wife and children. Therefore the plaintiffs have proved hiba dated 28-10-83 and declaratory affidavit dated 22-9-84."
Further held (B) MOHAMMADAN LAW -HIBA-Whether there was valid acceptance-whether the plaintiff's mother is legally competent to be the guardian of plaintiffs 2 to 5 who are minors 22 O.S.No.7592/2004 at the time of Hiba-Whether acceptance of gift by the mother on behalf of plaintiffs 2 to 5 who are minors invalid and Whether Hiba rendered void by such acceptance -
HELD- It is not in dispute that as on the date of hiba, plaintiffs 1 to 5 and defendant were residing together in the suit house. Considering the relationship between the donor and donees, actual or physical delivery of property by donor and acceptance of the same by donees was not called for. It is also not necessary that delivery of possession and acceptance of possession should have been followed by divestment of physical possession by defendant. since the defendant gifted the suit house to plaintiffs 1 to 5, acceptance of gift by first plaintiff for himself and on behalf of plaintiffs 2 to 5 is a valid acceptance."
23. I have carefully gone through the supra decisions, in the instant case, it clearly goes to show that, the possession was not handed over by the Mehaboobi in pursuance of the said gift deed in favour of the plaintiff and there is no proof of acceptance of gift and delivery of 23 O.S.No.7592/2004 possession of subject of gift i.e. suit schedule property had not been handed over on the date of the gift. On the basis of the evidence of P.W.1 to 3 and C.W.1, it clearly goes to show that there is no satisfactory evidence in proof of gift, dated 15.12.2003, as the evidence of P.W.1 to 3 and C.W.1 is discrepancy, unreliable and incredible. Mere registration of the gift under Mohammedan law is not a valid gift, the possession of delivery is one of the ingredients, unless and until the one of the ingredients is not fulfilled, it cannot be said to be a valid gift. Therefore, the facts and circumstances involved in this case are one and same, hence the principles laid down in the supra decisions are aptly applicable to the present case in hand. Further more both the plaintiff and defendant also relied the above ruling reported in ILR 2016 Kar.842. Therefore, I am of the opinion that the said gift deed, dt.15.12.2003 is not valid gift under Mohammedan law.
24. Since the plaintiff claiming the relief of declaration, declaring that the Registered sale deed, dt.16.9.2004 registered in favour of the defendant is not binding on the plaintiff and other reliefs, further has stated that on 22.9.2004 the defendant forcibly evicted her, and on enquiry the defendant told that she purchased the suit schedule property from his previous owner and threw the Xerox copy of the sale deed on her face, thereafter plaintiff 24 O.S.No.7592/2004 obtained the certified copies and came to know that the sale deed executed on 16.9.2004. During the cross examination of P.W.2 has stated that the defendant is in possession of the suit schedule property as on today from the date of execution of sale deed, it clearly goes to show that the same is within the knowledge of P.W.2, P.W.2 is none other than husband of the P.W.1. On taking into consideration of above evidence and evidence of D.W.5, clearly goes to show that Mehaboobi executed sale deed in favour of the defendant. it is not the case of the plaintiff that, the defendant has created the sale deed, the only claim of the plaintiff is that the sale deed, dated 16.9.2004 is not binding on her. however, the plaintiff has not established the sale deed dated 16.9.2004 is created one, it is the case of the plaintiff that in view of the gift deed executed by her mother, she is in possession of the property, as such the sale deed, dated 16.9.2004 is not binding on her. D.W.2 and 3 have categorically stated that there was a settlement took place at Masjid committee, wherein the plaintiff issued Rs.10,000/- and handed over the original gift deed to Mehaboobi, and at the time of purchase the suit schedule property the encumbrance certificate does not disclose about the alleged gift deed, therefore taking into consideration of above aspects it clearly goes to show that the defendant is the bonafide purchase of the suit schedule property for valuable sale 25 O.S.No.7592/2004 consideration. And I have carefully gone through decisions relied by the learned counsel for the plaintiff i.e., ILR 1992 KAR 2823, 1996) 6 Supreme Court Cases 44, ILR 2016 Kar.3281, ILR 2003 Kar.3042, (1991) 1 Supreme Court Cases 715, AIR 2002 SC 959, The Government Grants Act, 1895, Section 34 of the Specific Relief Act, and the decisions relied by the learned counsel for the defendant, AIR 1968, ILR 1996 KAR 1711, ILR 2016 KAR 942, AIR 1960, ILR 2003 KAR 3042, (2001) 6 SC 34, AIR 1964 SC 907, since the facts and circumstances involved in this case, and the principles laid down in the supra decisions are one and the same, hence with due respect to the above said citations which are not applicable to the present case on hand, and as already discussed in supra paras, it is held that the said gift deed dt.15.12.2003 is not valid gift deed, therefore on taking into consideration of above aspects and detailed discussions, I am of the opinion that the plaintiff has failed to prove that the sale deed dated 16.9.2004 is not binding on her and the defendant proves that the she is the bonafide purchaser of the suit schedule property for valuable consideration, and the suit is bad for non joinder of necessary parties, as such plaintiff is not entitled any relief as prayed. Hence, I answer issue No.1 and 4 in the negative, and issue No.2 answer accordingly, and issue No.3 in the affirmative.
26 O.S.No.7592/200425. ISSUE No.5: In the result, I proceed to pass the following:
ORDER The Suit of the plaintiff is hereby dismissed with costs.
Draw the decree accordingly.
(Dictated to the judgment writer directly on computer, corrected by me and then pronounced by me in the open court, on this 15th day of November, 2018).
(G.A.MULIMANI) XIV Addl. City Civil Judge Bangalore.
ANNEXURE List of witnesses examined on behalf of plaintiff/s:
P.W.1 : Bibi Jan P.W.2 : Sardar P.W.3 : Raghuvaiah
List of documents exhibited on behalf of plaintiff/s:
Ex.P-1 : Certified copy of gift deed dt.15.12.2003 Ex.P-2 & 3 : Two encumbrance certificates Ex.P4 : Certified copy of sale deed, dt.16.9.2004 27 O.S.No.7592/2004 List of witnesses examined on behalf of defendant/s:
D.W.1 : Amzad Pasha D.W.2 : Abdul Rehman D.W.3 : Naseer Ahmed D.W.4 : K.Rajeshwari D.W.5 : Jameela Begum
List of documents exhibited on behalf of defendant/s:
Ex.D1 : Gift deed, dt. 15.12.2003
Ex.D1 : Settlement deed, dt.04.07.2004
Ex.D2 : Original Sale deed, 16.09.2004
Ex.D3 : Original Sale deed, dt 24.4.2002
Ex.D4 : E.C.
Ex.D5 : Possession certificate
Ex.D6 to 8 : 3 Tax paid receipts
Witness examined by court:
C.W.1 - Venkatachalaiah
XIV ADDL.CITY CIVIL JUDGE
BANGALORE
Digitally signed by GOLLALAPPA
AYYAPPA MULIMANI
GOLLALAPPA DN: cn=GOLLALAPPA AYYAPPA
MULIMANI,ou=HIGH COURT
AYYAPPA OF
KARNATAKA,o=GOVERNMENT
MULIMANI OF
KARNATAKA,st=Karnataka,c=IN
Date: 2018.11.19 16:22:58 IST