Karnataka High Court
K V Venkatachalapathy S/O K N ... vs Smt Chinnamma W/O Late Muni Venkata ... on 12 March, 2013
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12th DAY OF MARCH 2013
BEFORE
THE HON'BLE MR.JUSTICE H.BILLAPPA
REGULAR FIRST APPEAL No.592/2009
Between:
K.V.Venkatachalapathy,
S/o.K.N.Venkatarathnamaiah,
Aged about 61 years,
Residing at Plot No.1309, 1311,
Davasandra Main Road,
Krishnarajapuram,
Bangalore - 560 036. ....Appellant
(By Sri.Y.K.Narayana Sharma & Y.V.Prakash, Advs.,)
And:
1. Smt.Chinnamma,
Aged 68 years.
2. Sri.Srinivasa Reddy,
Aged 46 years.
3. Sri.Babu Reddy,
Aged 38 years.
4. Sri.Nagaraja Reddy,
Aged 35 years.
No.1 being wife and 2 to 4 being the
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Children of late Muni Venkata Reddy
And are residing at Dinne Kottur Village,
Bangarpet Taluk,
Kolar District.
5. Smt.Narayanamma,
W/o.Narayana Reddy,
Aged 50 years,
Residing at Gajiga Village,
Magawadi Post,
Bangarpet Taluk.
Kolar District.
6. Smt.Bhagyamma,
W/o.R.Munivenkatappa,
Aged about 40 years,
Residing at A-10, NAL Complex,
Bangalore - 560 017.
7. Smt.D.M.Manjula,
W/o.Srinivasa Reddy,
Aged about 36 years,
Residing at No.28/1,
Puttappa Colony,
New Thippa Sandra,
Bangalore - 560 075.
8. Smt.D.M.Narasamma,
W/o.P.Anantha Reddy,
Aged about 39 years,
Residing at Kodthi Village,
Carmelram Post,
Varthur Hobli,
Bangalore - 560 035. ...Respondents
(By Sri.G.L.Vishwanath, Adv., for R-1 to 6
Sri.C.N.Ramaswamy Shastri, Adv., for R-7 & 8)
******
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This appeal is filed under section 96 read with O
XXXXI, R 1 of CPC, against the judgment and decree dated
28.02.2009 passed in O.S.No.6801/2001 on the file of the
III Addl. City Civil Judge, Bangalore, decreeing the suit for
declaration and permanent injunction.
This appeal coming on for further hearing this day,
the Court delivered the following:-
JUDGMENT
This appeal by the defendant No.3 is directed against the judgment and decree, dated 28.2.2009, passed by the III Addl. City Civil & Sessions Judge, Bangalore, in O.S.NO.6801/2001.
2. By the impugned judgment and decree, the trial court has decreed the suit of the plaintiffs declaring that the sale deeds dated 1.9.1998 and 15.10.1998 are collusive, bogus, fictitious and not intended to be acted upon. The 3rd defendant has not derived any right, title or interest in the suit schedule property. The 3rd defendant is restrained from interfering with the plaintiffs possession and enjoyment of the suit schedule property. -4-
3. Aggrieved by that, the appellant-defendant No.3 has filed this appeal.
4. The appellant is defendant No.3, the respondents 1 to 6 are plaintiffs and respondents 7 and 8 are defendants 1 and 2 before the Trial Court. The parties will be referred to with reference to their rank in the original suit O.S.No.6801/2001.
5. Briefly stated the facts are:
The respondents 1 to 6 i.e. the plaintiffs 1 to 6 filed suit in O.S.No.6801/2001 for declaration that the sale deeds dated 1.9.1998 and 15.10.1998 executed by the 1st and 2nd defendants respectively in favour of the appellant - 3rd defendant are collusive, bogus, fictitious and not intended to be acted upon. The plaintiffs case was that one Munivenkata Reddy was the owner of the land measuring 50' x 150', a portion of Sy.No.53 of Thippasandra Village, K.R.Puram Hobli, Bangalore South -5- Taluk having purchased it through sale deed dated 8.4.1960. Munivenkata Reddy died intestate on 9.9.1989 leaving behind his wife and seven children as his legal heirs. The 1st plaintiff is the wife, plaintiffs 2 to 6 and defendants 1 and 2 are the sons and daughters of late Munivenkata Reddy. After the death of Munivenkata Reddy, katha was transferred in the name of the first plaintiff. Munivenkata Reddy also owned lands in Sy.Nos.12/13, 16/11, 24/10, 27/12, 31, 13, 36 and 30/113 Dinne Kottur village, Bangarpet Taluk. Mutation in respect of these lands has been effected in the name of the first plaintiff.
6. It is stated, on or before 3.10.1993, the 3rd defendant along with the others requested the 1st plaintiff to sell a portion of the property measuring 50' x 110'. The 1st plaintiff told the 3rd defendant that she needs to speak to her children and without their consent, she cannot sell the property. The 3rd defendant and his men -6- told the 1st plaintiff to take a sum of `.25,001/- as deposit subject to future negotiation and concurrence of her children. Advance receipt was got prepared and the 1st plaintiff was made to affix her LTM on the said document. It is stated, the terms and conditions and sale consideration were not fully discussed or finalized. It was agreed that a detailed sale agreement would be prepared by the 3rd defendant and sent to the plaintiffs for their signature. Thereafter sale agreement was prepared and sent to the 1st plaintiff on 8.10.1993.
7. It is stated, the 3rd defendant made some interpolation in the receipt dated 3.10.1993 to the effect that rate per sq. ft. was confirmed at `.275/- thereby making the sale consideration at `.15,26,250/- . In fact the rate per sq. ft. was negotiated at `.575/- though not finalized.
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8. The 3rd defendant filed suit in O.S.No.842/94 for injunction based on the receipt dated 3.10.1993. The 1st plaintiff after coming to know about the interpolation, lodged complaint in PCR No.3/95 before the JMFC & Asst. Sessions Judge, KGF against the 3rd defendant and his aides Rasheed and Prakash for the offences punishable under sections 120-B, 465 and 193 of IPC. The proceedings are pending.
9. On 23.9.96 the 3rd defendant filed suit in O.S.No.6735/96 for specific performance of the receipt dated 3.10.93. During the pendency of the suit, the 3rd defendant filed an application for temporary injunction restraining the 1st plaintiff from alienating the suit schedule property or putting up any construction. The trial court granted injunction. The 1st plaintiff preferred appeals in MFA Nos.474/97 and 481/97 before this court. The appeals were disposed of on 12.3.97 with a direction that the 3rd defendant shall furnish security to the -8- satisfaction of the trial court to compensate the 1st plaintiff in the event the suit in O.S.NO.6735/96 is dismissed.
10. In the course of proceedings, the 3rd defendant was called upon to furnish security in terms of the direction in MFA Nos.474/97 and 481/97. The security furnished by the 3rd defendant was repeatedly rejected. At that stage, the 3rd defendant obtained two sale deeds dated 1.9.1998 and 15.10.1998 from the defendants 1 and 2 purporting to convey 1/8th undivided share each in the property in Sy.No.53 which was the subject matter of O.S.No.6735/96. It is stated, the sale deeds are collusive and they do not convey any right or interest in the property to the 3rd defendant. The 3rd defendant offered sale deeds dated 1.9.98 and 15.10.98 as security in O.S.No.6735/96. The trial court rejected it. The 3rd defendant preferred C.R.P.No.3519/98. This court by its order dated 3.11.99 confirmed the order of the trial court -9- holding that the doubt entertained by the trial court as to whether the 3rd defendant has derived any title in respect of 1/8th share could not be said to be unjustified. Consequently, the revision was dismissed.
11. It is stated, late Munivenkata Reddy owned several properties in addition to the suit schedule property. There was no partition. Therefore, the defendants 1 and 2 could not have alienated any specific property in favour of the 3rd defendant. The alienation by defendants 1 and 2 is presumptious and without legal right. Therefore, the 3rd defendant does not derive any right, title or interest in the suit schedule property based on the sale deeds dated 1.9.98 and 15.10.98.
12. It is stated, the 3rd defendant claims to have purchased 1/8th share each of the defendants 1 and 2 through impugned sale deeds only with ulterior motive of threatening the plaintiffs and forcing them to sell the
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remaining share of the property and to embarrass the plaintiffs.
13. In O.S.No.6735/96, the 3rd defendant has deposed that the children of the 1st plaintiff had no right, title or interest in the suit schedule property and he has verified that fact. Therefore, the sale deeds taken by the 3rd defendant are fictitious, collusive containing false recitals. The sale deeds have come into existence during the pendency of hotly contested case. It is impossible to believe that the 3rd defendant would have paid `.1,90,782/- to each of the defendants 1 and 2. The defendants 1 and 2 could not have put the 3rd defendant in possession of any specified portion of the property.
14. It is stated, O.S.No.6735/96 came to be dismissed on 25.2.2000. The matter is pending in appeal in RFA No.787/2000. The sale deeds are likely to throw a cloud on the title of the plaintiffs. Therefore, it has
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become necessary for the plaintiffs to seek declaration that the sale deeds dated 1.9.88 and 15.10.88 are collusive, bogus, vexatious and not intended to be acted upon. The 3rd defendant does not derive any right, title or interest in respect of the suit schedule property. He is making efforts to sell the suit schedule property. On 27.8.01, certain persons approached the plaintiffs 2 and 3 asking whether the suit schedule property was for sale. The plaintiffs apprehend that the third defendant would sell the suit schedule if not prevented by permanent injunction. Therefore, the plaintiffs have prayed for declaration that the sale deeds dated 1.9.98 and 15.10.98 are collusive, bogus, fictitious and not intended to be acted upon and for permanent injunction.
15. The defendants 1 and 2 i.e., the respondents 7 and 8 have filed their written statement contending that the third defendant approached them in 1998 and represented that he wanted to purchase the property and
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suggested, if the defendants 1 and 2 gave him a helping hand, he would be able to clinch the deal with their mother and brothers to come to the negotiating table. He also expressed his desire to pay the prevailing market value and if the move is successful, the defendants 1 and 2 would be paid their legitimate share. The defendant No.3 obtained the signatures of defendants 1 and 2 to two separate sale-deeds containing recitals which were factually not true and got them registered. The defendant No.3 assured the defendants 1 and 2 that the purpose of the documents was only to put pressure on their mother and brothers to come for settlement.
16. It is stated, the defendants 1 and 2 neither received the sale consideration nor the sale-deeds were intended to represent the real transaction. There was no alienation. The recitals are false and fictitious. The defendant No.3 had promised to return the documents after settling the dispute. The defendants 1 and 2
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honestly believed the defendant No.3 and co-operated with him. Later on, the defendants 1 and 2 realised that the sale-deeds have been taken for creating evidence against the mother of the defendants. The third defendant has not derived any right, title or interest in the property. Therefore, the defendants 1 and 2 have prayed to decree the suit.
17. The third defendant i.e., the appellant herein has filed his written statement contending that the suit is not maintainable. It is admitted that the first plaintiff is the wife of late Munivenkatareddy, the plaintiffs 2 to 6 and the defendants 1 and 2 are the children of late Munivenkatareddy. The suit schedule property was purchased by late Munivenkatareddy. The first plaintiff represented the third defendant that her children have authorized her and she is entitled to sell the suit schedule property and received the advance amount and executed
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the receipt in presence of the witnesses and her two sons namely the plaintiffs 2 and 3.
18. The plaintiffs and the defendants 1 and 2 proposed to sell the suit schedule property. The third defendant along with the estate agent went to negotiate on 3.10.1993. The first plaintiff and her sons negotiated with the third defendant and agreed to sell the suit schedule property. The rate was fixed at `275/- per sq.ft. The sale consideration was fixed at `15,26,250/-. It is denied that the first plaintiff told the third defendant that she needs to speak to all her sons and daughter and without their consent, she cannot sell the property. It is also denied that the third defendant and his men forced the first plaintiff to keep a sum of `25,001/- as deposit subject to the future negotiations. It is stated, the first plaintiff received the advance amount after finalization of total consideration in presence of the plaintiffs 2 and 3. It is denied that the advance receipt was got prepared
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and the first plaintiff was made to affix her LTM on the document. The first plaintiff signed the receipt having received the advance amount as part of sale consideration. The plaintiffs 2 and 3 are witnesses to the receipt dated 3.10.1993.
19. It is denied that some interpolation was made in the receipt as though the rate per square feet was fixed at `275/- and thereby making the sale consideration at `15,26,250/-. After negotiation, the rate per square feet and total consideration was written in the receipt. Thereafter, the plaintiffs 1, 2 and 3 have signed the receipt. It is admitted that O.S.No.842/1994 has been filed by the third defendant. The first plaintiff has filed PCR.No.3/1995 before the JMFC and Assistant Sessions Judge at KGF. It is also admitted that the defendant No.3 had filed suit in O.S.No.6735/1996 for specific performance of the sale agreement. An interim order was passed which was challenged in MFA.Nos.474 and
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481 of 1997. It is stated, the defendants 1 and 2 came forward to convey their 1/8th undivided share each for valuable sale consideration as agreed earlier and executed sale-deed in favour of the defendant No.3 after receiving sale consideration amount. It is stated, the Court did not accept the security on the ground that the subject matter of the suit cannot be accepted as security. It is denied that the Court entertained a doubt as to whether the defendant No.3 derived any title in respect of 1/8th share. It is admitted that CRP.No.3519/1998 was rejected.
20. It is denied that the third defendant purchased 1/8th share of the defendants 1 and 2 with ulterior motive of threatening the plaintiffs and to force them to sell the remaining portion and the sale-deeds are fictitious and collusive containing false recitals. It is stated, the first plaintiff in her written statement filed in the suit for specific performance has stated that she is not the
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absolute owner of the suit schedule property and there are seven other sharers, each of them have got 1/8th share in the suit schedule property. Therefore, the defendants 1 and 2 approached the defendant No.3 to sell their undivided share in the suit schedule property. The defendants 1 and 2 have received full consideration and put the third defendant in possession of the undivided 1/8th share each in the suit schedule property. The third defendant has stepped into the shoes of the defendants 1 and 2.
21. It is admitted that O.S.No.6735/1996 was dismissed and RFA.No.787/2000 is pending. It is stated, the third defendant entered into sale agreement with the first plaintiff as she represented that all her children have authorized her and she is managing the affairs of the family. When the defendants 1 and 2 approached the third defendant to sell their undivided share, to show his bona fides, readiness and willingness and capacity to
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purchase the property, the defendant No.3 has paid full sale consideration as mentioned in the sale deeds. The plaintiff and the defendants 1 and 2 have collided with each other to deprive the legitimate right of the third defendant.
22. It is stated, the defendant No.3 is not interested in selling the suit schedule property to anybody. The third defendant has paid full sale consideration amount. Katha has been transferred. He has stepped into the shoes of defendants 1 and 2. The plaintiffs have no cause of action and the suit is barred by limitation. Therefore, the defendant No.3 has prayed for dismissal of the suit.
23. The Trial Court has framed the following issues and additional issues;
1. Whether the plaintiffs prove that the sale deeds dated 01.09.1998 and 15.10.1998 obtained by 3rd defendants from 1st and 2nd
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defendants are collusive, bogus, fictitious and not intended to be acted upon and the 3rd defendant has derived no right, title or interest and consequently for cancellation of the sale deeds?
2. Whether plaintiffs prove that they are in lawful possession of suit property and the defendants are interfering unnecessarily?
3. Whether plaintiffs are entitled to declaratory relief so prayed for?
4. Whether plaintiffs are entitled to permanent injunction as prayed for?
5. What order or decree?
Additional Issues:
1. Whether the suit is properly valued?
2. Whether defendant No.3 proves that there is no cause of action to file this suit?
3. Whether the suit is barred by limitation?
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24. The Trial Court has answered issue Nos.1 to 4 in the affirmative, additional issue Nos.1 to 3 in the negative and consequently, the suit has been decreed declaring that the sale-deeds dated 1.9.1998 and 15.10.1998 are collusive, bogus and fictitious. The third defendant does not derive any right, title or interest in the suit schedule property. Injunction has been granted restraining the defendant No.3 from interfering with the plaintiffs' possession. Therefore, this appeal.
25. The learned counsel for the appellant contended that the impugned judgment and decree cannot be sustained in law. He also submitted that the Trial Court has failed to consider the evidence on record in proper perspective. Further he submitted that the defendants 1 and 2 have sold their share in the suit schedule property. The plaintiffs have no locus standi to file the suit. It is only the defendants 1 and 2 who could have challenged the sale-deeds. The defendants 1 and
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2 have not entered the witness-box. Therefore, adverse inference has to be drawn against them. Further he submitted that the plaintiffs are not the aggrieved persons. Therefore, they cannot challenge the sale- deeds. Further he submitted that the previous suit cannot be a resjudicata. He also submitted that the amount has been paid through DD. The admission, if any, by the third defendant in the previous proceedings is of no consequence. The partition deed Ex.P.20 is hit by lis pendence. He also submitted that the inadequacy of consideration cannot be a ground to invalidate the sale- deeds. The suit is misconceived and not maintainable. Ex.P20 does not bind the defendant No.3 as the defendant No.3 is not a party and the defendants 1 and 2 cannot be parties to the partition in respect of the suit property. He also submitted that the sale-deeds are voidable at the instance of the defendants 1 and 2 and not void. Further he submitted that the findings in MFA
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are not binding. The defendant No.3 initially believed that the first plaintiff is the owner. Due to change of circumstances the defendant No.3 has changed his stand. The sale-deeds are valid. Therefore, the Trial Court was not justified in decreeing the suit and the impugned judgment and decree cannot be sustained in law.
26. Placing reliance on the decision of the Madras High Court reported in AIR 1975 Madras page 316 and the decision of the Hon'ble Supreme Court reported in AIR 1990 SC page 854, AIR 1953 SC page 487, AIR 1966 SC page 470, AIR 2009 SC page 2735 and (2009) 10 SCC page 654, (1999) 3 SCC pages 457, the learned counsel for the appellants submitted that the alienation by a coparcener of undivided share is permissible and the alienee can claim partition and allotment of co-parceners' share. The alienation in favour of the third defendant is valid and the defendant No.3 can claim partition and allotment of share of defendants 1 and 2. He also
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submitted that the sale-deeds in favour of the third defendant cannot be adjudged as fictitious, collusive and bogus.
27. Further placing reliance on the decision of the Hon'ble Supreme Court reported in (1999) 3 SCC page 573, the learned counsel for the appellant submitted that the defendants 1 and 2 have not stepped into the witness-box and therefore, adverse inference has to be drawn against them.
28. Further placing reliance on the decision of the Hon'ble Supreme Court reported in 1956 SC 446, the learned counsel for the appellant submitted that a clause in a deed cannot ipso facto render the whole deed void. The sale-deeds in favour of the third defendant are valid and the impugned judgment and decree cannot be sustained in law.
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29. As against this, the learned counsel for the respondents 1 to 6 submitted that the impugned judgment and decree does not call for interference. He also submitted that the Trial Court on proper consideration of the material on record has rightly decreed the suit and therefore, the impugned judgment and decree does not call for interference. Further he submitted that the sale-deeds exhibits P15 and P16 have come into existence during the pendency of the suit. O.S.No.6735/1996 was filed by the appellant for specific performance of the sale agreement. In the plaint, the appellant had pleaded that advance was paid only to Chinnamma i.e., the first plaintiff. The suit is filed only against first plaintiff Chinnamma for specific performance. Late Munivenkatareddy owned several properties. On 3.10.1993, the defendant No.3 paid `.25,001/- and obtained receipt from the first plaintiff. It was manipulated. The appellant filed suit in O.S.No.842/1994
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for injunction based on the receipt Ex.P.23. Thereafter, the appellant sought for permission to convert the suit for specific performance. It was rejected. Thereafter, on 23.9.1996, O.S.No.6735/1996 was filed for specific performance only against the first plaintiff. In para 3, the appellant had pleaded that the first plaintiff is the owner of the suit schedule property. In his evidence the appellant has stated that money was not paid to the children. The suit was dismissed. It was confirmed in RFA and SLP also has been dismissed.
30. Further he submitted that the recitals in exhibits P15 and P16 are untrue and contrary to the pleadings in O.S.No.6735/1996 and evidence of the appellant, with regard to consideration, the amount paid and possession delivered. When the recitals of sale- deeds are untrue with regard to vital aspects like consideration, amount paid and delivery of possession, the sale-deeds are fictitious, bogus and manipulated.
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31. Further he submitted that in MFA.No.474/1997 i.e., Ex.P.13, there was a direction to furnish security. The sale-deeds exhibits P15 and P16 were offered as security. The Trial Court refused to accept exhibits P15 and P16 as security. It was confirmed in CRP.No.3519/1998. Therefore, the sale-deeds exhibits P15 and P16 are fictitious and invalid documents.
32. Inviting my attention to Ex.P19, the judgment rendered in O.S.No.6735/1996, the learned counsel for the respondents 1 to 6 submitted that issue No.1 relates to the receipt dated 3.10.1993. The burden is on the appellant to prove that the first plaintiff along with her sons agreed to sell the suit schedule property at `275/- per sq.ft. and the total consideration agreed was `15,26,250/-. Issue No.6 relates to `25,000/- paid towards deposit. The burden is on the first plaintiff to prove issue No.6. Issue No.5 relates to offer made by
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the first plaintiff. The burden is on the first plaintiff to prove issue No.5. The Trial Court has held issue No.1 in the negative and issue Nos.5 and 6 in the affirmative. It has been confirmed in RFA.No.787/2000 holding that there was no concluded contract and Ex.P23 receipt was meant to evidence deposit of Rs.25,000/-. The SLP has been dismissed. Therefore, the recitals in the sale-deeds that the plaintiffs and the defendants 1 and 2 agreed to sell the property at `275/- per sq.ft. and the defendants 1 and 2 received their share of `3,105/- on 3.10.1993 is untrue.
33. Further he submitted that the appellant has deposed that he has not asked the defendants 1 and 2 for possession so far. Therefore, the recitals in the sale- deeds regarding delivery of possession is also untrue. When the recitals regarding consideration and delivery of physical possession are untrue, the sale-deeds are invalid, bogus, fictitious and collusive. Therefore, the
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impugned judgment and decree does not call for interference.
34. Further he submitted that the appellant cannot be a bona fide purchaser. He invited my attention to exhibits P20A, P25A and P25B and submitted that the appellant has deposed that it was not necessary to verify the title of the first plaintiff and the children of the first plaintiff had no right, title or interest in the suit property. He has verified it. The 1st plaintiff is the absolute owner of the suit schedule property. Therefore, the appellant cannot be a bonafide purchaser.
35. He also submitted that exhibits P15 and P16 have come into existence during the pendency of the suit. The plaint is not amended in O.S.No.6735/1996. The suit has been dismissed and confirmed in the appeal and also by the Hon'ble Supreme Court. Therefore, the sale-deeds exhibits P15 and P16 are fictitious documents and they do
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not convey any right, title or interest in the property. He also submitted that the plaintiffs came to know about the sale-deeds only when they were offered as security pursuant to the direction in MFA.Nos.474/1997 and 481/1997. Further he submitted that the impugned judgment and decree does not call for interference. He placed reliance on the following decisions; (1) AIR 1962 SC page 847 (2) (2009) 10 SCC page 654
36. I have carefully considered the submissions made by the learned counsel for the parties.
37. The point that arises for my consideration is, Whether the suit was maintainable and the impugned judgment and decree calls for interference?
38. The suit is for declaration that the sale-deeds dated 1.9.1998 and 15.10.1998 executed by the defendants 1 and 2 in favour of the defendant No.3 are
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bogus, collusive, fictitious and they do not convey any right, title or interest in the suit schedule property.
39. The appellant i.e., the defendant No.3 has resisted the suit contending that the sale-deeds are valid and they have been executed by the defendants 1 and 2 conveying their interest in the suit schedule property for valuable consideration.
40. The plaintiffs i.e., the respondents 1 to 6 have examined PW1 and exhibits P1 to P26 have been marked.
41. The appellant-defendant No.3 has examined himself as DW1 and exhibits D1 to D12 have been marked.
42. PW1 and DW1 have deposed supporting their respective stand.
43. Ex.P.24 is the plaint in O.S.No.6735/1996. The suit has been filed by the appellant-defendant No.3
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for specific performance of the sale agreement dated 3.10.1993. The appellant-defendant No.3 has contended that the first plaintiff and her sons agreed to sell the suit schedule property. The rate was fixed at `275/- per sq.ft. The total sale consideration was fixed at `15,26,250/-. The appellant-defendant No.3 paid a sum of `25,001/- as advance to the first plaintiff and a receipt was issued.
44. The first plaintiff has filed written statement in O.S.No.6735/1996 as per Ex.D.9 denying the plaint averments and contending that on 3.10.1993, the appellant-defendant No.3 and his men offered to purchase the property at the rate of `575/- per sq.ft. The first plaintiff told them that unless her sons and daughters agree to sell, she alone cannot agree without their consent. The appellant and his men pursued the plaintiff to keep a sum of `25,000/- as deposit subject to future negotiation. The amount was accepted only as a
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deposit and not as advance or part of the sale consideration. The thumb impression was taken on the receipt. The receipt is a fabricated document. The first plaintiff and her children are entitled for 1/8th share each in the property in question.
45. The Trial Court has framed in all 9 issues in O.S.No.6735/1996. Out of them, issue Nos.1, 5 and 6 are relevant and they are as follows;
Issue No.1. Whether the plaintiff proves that on 3.10.1993, the defendant along with her son agreed to sell the suit schedule property to the plaintiff at the rate of `275/- per sq.ft. & for the total consideration amount of `15,26,250/-? Issue No.5. Whether the defendant proves that the plaintiff along with Rashid & Prakash approached the defendant in the village on 3.10.1993 and offered to purchase plaint schedule property at `575/- per sq.ft.?
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Issue No.6. Whether the defendant proves that the amount of `25,000/- paid by the plaintiff is towards the deposit subject to future negotiation & not as advance amount?
46. The Trial Court has answered issue No.1 in the negative and issue Nos.5 and 6 in the affirmative. The Trial Court has held that the appellant herein has failed to prove that on 3.10.1993, the first plaintiff and her sons agreed to sell the suit schedule property at the rate of `275/- per sq.ft. There was no concluded contract. The first plaintiff has proved that on 3.10.1993, the appellant herein and his men offered to purchase the property at `575/- per sq.ft. The findings recorded by the Trial Court in O.S.No.6735/1996 has been confirmed by this court in RFA No.787/2000 holding that there was no concluded contract and exhibit P23 receipt was meant to evidence deposit of Rs.25,000/-.
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47. The sale-deeds exhibits P15 and P16 have come into existence during the pendency of O.S.No.6735/1996. The sale agreement and sale consideration were seriously disputed in O.S.No.6735/1996. While the appellant-defendant No.3 contended that the first plaintiff agreed to sell the suit schedule property at the rate of `275/- per sq.ft., the first plaintiff contended that it was `575/- per sq.ft. Ultimately, it has been held by this Court that there was no concluded contract. Ex.P23 receipt was meant to evidence deposit of Rs.25,000/-.
48. The deposition of the appellant in O.S.No.6735/1996 is marked as exhibits P25(a) and P25(b). Ex.P25(a) reads as follows;
"Witness further volunteers: it was not necessary to verify the title of the defendant. Children of the defendant had no right, title or interest in the suit property & I have verified to that effect."
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Ex.P.25(b) reads as follows;
"Till today defendant is the absolute owner of the suit property."
49. It is clear, the appellant-defendant No.3 has deposed in O.S.No.6735/1996 that the 1st plaintiff in O.S.No.6801/2001 is the absolute owner of the suit property and her children had no right, title or interest in the suit property.
50. The suit was filed based on Ex.P.23 receipt. It was seriously contested and a finding has been recorded that there was no concluded contract and there was interpolation of Ex.P23 regarding the rate agreed. Exhibits P15 and P16 have come into existence during the pendency of O.S.No.6735/1996.
51. The recitals in exhibits P15 and P16, particularly paras 4 and 5 read as follows;
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"WHEREAS, in the year 1993, differences arose among the family members in respect of properties and financial matters and thereby the vendor and other heirs of late Munivenkata Reddy mutually decided to sell away a portion of the property out of the property measuring East to West 50 ft. and North to South 150 ft. bearing Khatha HALSB Khatha No.1042/419, to overcome the financial crisis, accordingly the said property was offered to sell and the purchaser approached the Vendor's mother and brothers and negotiated with them for the purchase of the said property, thereafter, the Vendor along with other heirs had an discussion jointly and decided to sell the said property to purchaser at `275/- (Rupees two hundred and seventy five only) per square feet, accordingly the Purchaser agreed to purchase the property to an extent of East to West 50 ft. and North to South 110 ft. at the above rate, and on 3.10.93, the vendor's mother being the Kartha of the family received a sum of `25,001/- (Rupees twenty five thousand and one only) from the purchaser, as 1st advance amount.
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Pursuant to this there arose misunderstanding and the transaction was not complete.
WHEREAS, when the matter stood thus, the Vendor being the Co-sharer to the extent of 1/8th share in the said property, and in order to clear of the present litigation tried to convince and advised the mother and brother to settle the issue, but they turned deaf and dumb to the said advice."
Relevant portion of para.6 reads as follows;
"The purchaser agreed to purchase the Vendor's 1/8th share as per the agreed rate of `275/- (Rupees two hundred and seventy five only) per square feet, which totally worked out to `1,90,782/- (Rupees one lakh ninety thousand, seven hundred and eighty two only) as the Vendor's 1/8th share out of the total sale consideration amount of `15,26,250/- (Rupees fifteen lakh twenty six thousand two hundred and fifty only), accordingly, the purchaser herein having agreed to purchase the schedule property, has paid the sale consideration
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amount of `1,90,782/- (Rupees one lakh ninety thousand seven hundred and eighty two only) to the Vendor in the following manner viz;
a) A sum of `3,125/- (Rupees three thousand one hundred and twenty five only) by way of cash has been paid and received by the Vendor on 3.10.1993, when the negotiation of sale was settled."
In para 11, it is stated that the Vendor handed over physical possession of the schedule property along with the copies of the documents she had with her to the purchaser.
52. The recitals in exhibits P15 and P16 are apparently untrue. Having regard to the pleadings in O.S.No.6735/1996, the depositions of the appellant and the findings recorded in O.S.No.6735/1996 and RFA.No.787/2000, the recitals in exhibits P15 and P16 regarding consideration, amount agreed, amount paid
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and delivery of physical possession are untrue. Infact, the appellant has deposed in his cross examination on 28.3.2006 and 6.3.2008 as follows in O.S.No.6801/2001;
"In exhibits P15 and P16, the sale consideration is mentioned and calculated at `275/- per sq.ft. I have not paid `3,125/- to defendants 1 and 2 on 3.10.1993. There was no finalization or agreement in between me and defendants 1 and 2 on the said date.
I have not asked the defendants 1 and 2 since from the last 10 years in writing to put me in possession of the property purchased under Ex.P15 an P16."
The deposition of the appellant makes it very clear that the recitals in exhibits P15 and P16 are untrue. If the recitals regarding consideration, amount paid and delivery of possession are untrue, it renders the documents invalid. Therefore, it cannot be said that exhibits P15 and P16 are valid documents. They have come into existence during the pendency of
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O.S.No.6735/1996 when there was serious dispute with regard to sale agreement and rate agreed. This Court has held that there was no concluded contract and exhibit P23 receipt was meant to evidence deposit of Rs.25,000/- Therefore, it is difficult to believe that the defendants 1 and 2 have sold the property at the rate of `275/- per sq.ft. While it is true, the defendants 1 and 2 have succeeded to the property of their father and they have an interest in the property. But, Exhibits P15 and P16 have come into existence, when there was serious dispute in O.S.NO.6735/1996 regarding sale agreement and the rate agreed. In view of the findings recorded in O.S.No.6735/1996 and R.F.A.No.787/2000 and the evidence on record, the sale-deeds exhibits P15 and P16 cannot be said to be valid documents.
53. The learned counsel for the appellant contended that it is only the defendants 1 and 2 who can challenge the sale-deeds and not others. The factual
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background of this case reveals that there was a case pending in O.S.No.6735/1996 for specific performance in respect of the suit schedule property against the 1st plaintiff contending that the 1st plaintiff is the absolute owner of the suit schedule property. During the pendency of the suit exhibits P15 and P16 have come into existence. The 1st plaintiff has succeeded in O.S.NO.6735/1996 upto the Hon'ble Supreme Court. The plaintiffs have subsisting interest in the suit schedule property. Therefore, it cannot be said, in the circumstances of the case, the plaintiffs cannot maintain the suit. The suit is maintainable.
54. It was contended that the suit is barred by limitation. The sale-deeds are dated 1.9.1998 and 15.10.1998. They have come into existence during the pendency of the suit in O.S.No.6735/1996. The suit is filed on 31.8.2001. It is well within time i.e., three years. Therefore, there is no merit in the contention that the
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suit was barred by limitation and accordingly, it is rejected.
55. The Trial Court on proper consideration of the material on record has rightly held that the sale deeds dated 01.09.1998 and 15.10.1998 are collusive, bogus and fictitious. The third defendant does not derive any right, title and interest in the suit schedule property. There is no valid reason to interfere with the findings recorded by the Trial Court. Therefore, the impugned judgment and decree does not call for interference. There is no merit in the appeal and therefore, the appeal is liable to the dismissed.
Accordingly, the appeal is dismissed. No costs.
Sd/-
JUDGE Dvr/Bss.