Bangalore District Court
Smt. D. Indumathi vs Sri. Varadarajulu on 30 October, 2017
Govt. Of Karnataka
C.R.P.67] TITLE SHEET FOR JUDGMENTS IN SUITS
Form No.9(Civil) AT MAYOHALL UNIT, (CCH-29) BANGALORE.
Title sheet for
Judgment in suits
(R.P.91)
Present: Sri. J.R.Mendonca, B.A.L., LL.B,
(Name of the Presiding Judge)
Dated: This the 30th day of October 2017
Original suit No.16195/2006
Plaintiff:- 1. Smt. D. Indumathi,
D/o Sri. V.K. Arumugam,
Aged about 50 years,
R/at No.65/19, Thiruvalluvar Street,
Anbalagan Nagar, Chennai-600 011.
2. D.I. Vijayanand,
S/o Devan,
Aged about 29 years,
R/at No.19/9, 1st Cross,
Convent Road, Kammanahalli,
St. Thomas Town Post,
Bangalore-560 084.
(By Pleader Smt. V. Ganga Bai)
V/s
Defendants:- 1. Sri. Varadarajulu,
Aged about 57 years,
S/o Late A. Papaiah Naidu,
R/at No.27, 2nd Main Road,
Nanjappa Reddy Layout,
R.M. Nagar Post,
Bangalore-560 016.
2 O.S.No.16195/2006
2. Sri. T. Prakasam,
Aged about 47 years,
S/o Shri. Thirupathi Goundar,
Residing at Pullanari Village & Post,
Via Jolarpet, Thirupathur,
Vellore District, Tamilnadu.
3. Sri. V. Devan,
S/o Late Sri. Veeraraghava
Gownder,
79, Panjara Layout Entrance,
Horamavu Post,
Bangalore-560 043.
Also at:
Sri. V. Devan,
S/o Late Sri. Veeraraghava
Gownder,
Thriyalam Village & Post,
Via Jolar Pet, Thirupathur Taluk,
Vellore District, Tamil Nadu.
(Pleader by Sri. VRS Adv., forr D.1 and D.2,
Sri. SSR Adv., for D.3)
Date of Institution of the suit 12.7.2006
Nature of the (Suit or pro-note, suit for Declaration and
declaration and possession, suit for Injunction
injunction, etc.)
Date of the commencement of recording of 18.6.2008
the Evidence
Date on which the Judgment was 30.10.2017
pronounced
Year/s Month/s Days
Total duration 11 03 18
3 O.S.No.16195/2006
JUDGMENT
This is a suit filed by the Plaintiff to declare that the Plaintiffs are the absolute owners of the suit property by setting aside and cancelling the Sale Deed dtd: 31.3.2006 executed by the 3rd Defendant in favour of the 1st Defendant as null and void and to direct the Defendants to hand over physical possession of the suit property to the Plaintiffs, for permanent injunction restraining the Defendants from interfering with the peaceful possession and enjoyment of the suit property and for costs of the suit.
2. The description of the suit schedule property is as follows:-
SCHEDULE Item No.1 All the piece and parcel of property bearing site Nos.25 and 20, House list Khata No.130/3, situated at Horamavu Agara Village, K.R.Puram Hobli, Bangalore East Taluk, Bangalore, measuring East to West: 40 Feet and North to South: 125 Feet and bounded on the:
East by : Site Nos.24 and 19.
West by : Site Nos.26 and 21.
4 O.S.No.16195/2006
North by : 25 feet wide road.
South by : 25 feet wide road.
Item No.2
All the piece and parcel of property bearing site Nos.21 and 26, House list Khata No.130/3, situated at Horamavu Agara Village, K.R.Puram Hobli, Bangalore East Taluk, Bangalore, measuring East to West: 40 Feet and North to South: 125 Feet and bounded on the:
East by : Site Nos.25 and 20.
West by : Site Nos.27 and 22.
North by : 25 feet wide road.
South by : 25 feet wide road.
3. The brief facts of the case of the plaintiff are as follows:-
The Plaintiffs are the mother and son. The 1st Plaintiff is the absolute owner of the Item No.1 of the Plaint Schedule Property by virtue of the registered Sale Deed dtd: 14.7.2004. The Plaintiffs are the joint owners of the Item No.2 of the Plaint Schedule Property by virtue of the registered Sale Deed dtd: 14.7.2004. The Plaint Schedule Properties are abutting to each other and form composite property. The Plaintiffs have put up 5 O.S.No.16195/2006 the common compound wall with a gate to both the Plaint Schedule Properties. The Plaintiffs had been in possession of the Plaint Schedule Properties from the date of purchase from 25.6.2006, when the possession of the schedule premises was forcefully and unlawfully taken by the Defendants. The Plaintiffs have stated that the 3rd Defendant is the husband of the 1st Plaintiff and father of the 2nd Plaintiff. The 3rd Defendant had never taken any interest in the welfare of the Plaintiff No.1 or their children. He was harassing the 1st Plaintiff for money. When the 1st Plaintiff could not tolerate the harassment of the 3rd Defendant, she had filed a suit in O.A.No.1786/2005 at Chennai and got a decree of divorce. The intention of the 3rd Defendant was to knock away of the schedule properties. The 3rd Defendant after his retirement settled in Bangalore. The Plaintiffs had kept the original documents of the properties in Bank locker for its safety as the 3rd Defendant was threatening to knock of the properties from them. The 2nd Plaintiff is working at Bangalore. In the month of May 2006 when the 2nd Plaintiff in order to pluck mangoes went to the suit property, the 3rd Defendant came to the place and asked him to pay Rs.10,00,000/- for his expenditure and asked him to get out from there. The 2nd Plaintiff avoided him and locked the gate and came away. 6 O.S.No.16195/2006
4. On 10.5.2006 the Plaintiff No.2 had lodged police complaint. He went to the Plaint Schedule Property along with the police and found that from the back side there was an electrical connection given to the suit property. The 2nd Plaintiff was lodged complaint with the Electricity Board and also filed a case against the 3rd Defendant and BESCOM in OS.No.4269/2006. The Defendant Nos.1 and 2 of this suit impleaded in the said suit as the Defendant Nos.1 and 2 and have filed a case against the Plaintiffs in OS.4183/2006 on 11.5.2006. The Plaintiffs were not aware of the transaction regarding the Suit Schedule Property. The Defendant Nos.1 and 2 have stated that they are the owners of the Suit Schedule Properties and the Defendant Nos.1 and 2 have filed the case in OS.No.4183/2006 against the Plaintiffs on 11.5.2006. At that stage, the Plaintiff came to know that the 3rd Defendant in connivance with the 1st and 2nd Defendant fabricated the General Power of Attorney as if the Plaintiffs have executed the General Power of Attorney at Chennai and on the strength of the fabricated and illegal document has alienated the Suit Schedule Properties to the Defendant Nos.1 and 2. The Defendant Nos.1 and 2 having due knowledge that the General Power of Attorney is not registered and that it is created with illegal motive and 7 O.S.No.16195/2006 they executed the Sale Deed. The Plaintiffs have stated that they have not executed any General Power of Attorney in favour of the Defendant No.3. They have stated that since August 2005 there was a case in OA.No.1786/2005 pending for divorce before the Family Court at Chennai between the 1st Plaintiff and the 3rd Defendant and it is improbable that the 1st Plaintiff would execute the General Power of Attorney in favour of the 3rd Defendant. On the strength of the said Sale Deed the Defendant Nos.1 and 2 have changed the khata and other documents to show that they are in possession of the Plaint Schedule Property even though the Plaintiffs were in actual possession of the Plaint Schedule Property. The Plaintiffs had shown their name in the compound wall of the Plaint Schedule Property and had also painted on the compound wall that the Plaint Schedule Property was not for sale and the same was erased with the white paint subsequent to taking the forcible possession of the property. The Defendants have put up the board showing the name of Mr. Varadarajulu.
Therefore, the Plaintiffs have stated that on 25.6.2006 in order to dispossess them the Defendants have broke open the lock of the Plaint Schedule Property and have filed a suit in OS.No.4183/2006. The Plaintiffs have stated that the Defendant Nos.2 and 3 in para No.5 of their plaint in OS.No.4183/2006 have 8 O.S.No.16195/2006 falsely stated that after the purchase of the property they allowed the watchmen to stay in the property and that they are in possession of the property. Therefore, the Plaintiffs have prayed to decree the suit.
5. The Defendants have appeared through their counsel and the Defendant Nos.1 and 3 have filed their separate written statement.
The contentions raised by the Defendant Nos.1 and 3 in their written statement is same. They have admitted that the Plaintiffs are the wife and son of Defendant No.3. They have stated that the Defendant Nos.1 and 2 are the absolute owners of the Plaint Schedule Properties by virtue of the registered Sale Deed dtd: 31.3.2006 executed by the Defendant No.3 on the basis of the General Power of Attorney. The Plaintiff Nos.1 and 2 have executed two different General Power of Attorney dtd:10.3.2006 at Chennai. The 1st Defendant has executed the declaration affidavit declaring that the parental deeds have been misplaced at the time of renovating her house and the said documents are not pledged, mortgaged and the Suit Schedule Property is free from all types of encumbrances. The Defendant Nos.1 and 2 were put in possession of the Suit Schedule Property 9 O.S.No.16195/2006 by virtue of the Sale Deed dtd: 31.3.2006 and the khata of the property is changed to the name of Defendant Nos.1 and 2. They have put up a compound wall and temporary shed and allowed the watchmen to stay in the property. They have also obtained electricity connection to the Suit Schedule Property. The Defendant No.2 was working as an Engineer in Tamil Nadu Housing Board and he was having income of Rs.15,000/- per month and he has purchased the properties in the name of the 1st Plaintiff and also properties in the name of his children. On 27.6.2003 the Defendant No.3 has retired from his services and got Rs.12,00,000/- towards the retirement benefits. The said amount was invested for purchasing the Suit Schedule Property in the name of the Plaintiffs during July 2004. The Defendant No.3 has stated that the 1st Plaintiff and the 3rd Defendant intended to alienate the properties situated at Bangalore and therefore, the 1st Plaintiff has executed the General Power of Attorney on 10.3.2006 as the Plaintiffs were unable to come to Bangalore and execute the Sale Deed at Bangalore. The 3rd Defendant came to Bangalore and made negotiations with the purchasers and sold the property to Defendant Nos.1 and 2 under the registered Sale Deed dtd: 31.3.2006 for a sum of Rs.27,50,000/- and has handed over the possession of the 10 O.S.No.16195/2006 property to them. After the sale the 3rd Defendant handed over the entire amount to the Plaintiff No.1. After receiving the said amount the Plaintiff No.1 started harassing the Defendant No.3 and she use to stay away from the house of the Defendant No.3 at Chennai. When the Plaintiff No.1 failed to look after the younger son, he called her and requested to stay at Chennai and he came to Bangalore and stayed with the 2nd Plaintiff for 15 days at Bangalore and at the instigation of 1st Plaintiff the 2nd Plaintiff also neglected the 3rd Defendant. Therefore, he started living separately at Bangalore. The Defendant No.3 has stated that he is not aware about the petition for divorce in OA.No.1786/2005. The 3rd Defendant was residing with the 1st Plaintiff during the said period and he never received any notice or summons in that case. The Defendant Nos.1 and 2 have stated that after the verification of the documents they have purchased the property by paying Rs.27,50,000/-. They are the bonafide purchasers. They are not aware about the allegations made by the Plaintiff No.1 against the Defendant No.3 at the time of purchase of the property. The Defendants had no intention to deprive the rights of the Plaintiffs or cheat the Defendant No.3. The Defendant No.3 has stated that after coming back to Bangalore he learnt that the 1st Plaintiff is living 11 O.S.No.16195/2006 with his friend Sharagunam. The 1st Plaintiff had illicit relationship with him. The Defendant No.3 has stated that at the instigation of Sharagunam the Plaintiffs are trying to grab the property. Therefore, the Defendants have prayed to dismiss the suit.
6. Based on the aforesaid pleadings this Court has framed the following issues:-
ISSUES
1) Whether the Plaintiffs prove that the Plaintiff No.1 is the absolute owner of the Item No.1 of the Plaint Schedule Property by virtue of the registered Sale Deed dtd: 14.7.2004?
2) Whether the Plaintiffs further prove that they are the joint owners of the Item No.2 of the Plaint Schedule Property by virtue of the Sale Deed dtd:
14.7.2004?
3) Whether the Defendant No.3 proves that the Plaintiffs had no income or capacity to purchase the Plaint Schedule Properties and he has purchased the Plaint Schedule Properties in the name of the Plaintiffs out of his own income?
4) Whether the Plaintiffs further prove that they were in possession and enjoyment of the Plaint Schedule Property from the date of purchase till 25.6.2006? 12 O.S.No.16195/2006
5) Whether the Plaintiffs further prove that on 25.6.2006 the Defendants have dispossessed the Plaintiffs and have taken forcible possession of the Plaint Schedule Property from them?
6) Whether the Defendants prove that the Plaintiff No.1 has duly executed the Power of Attorney dtd:
10.3.2006 in favour of the Defendant No.3 in respect of the Item No.1 of the Plaint Schedule Property authorizing the Defendant No.3 to sell the same on her behalf?
7) Whether the Defendants prove that the Plaintiff Nos.1 and 2 have duly executed the Power of Attorney dtd: 10.3.2006 in favour of the Defendant No.3 in respect of the Item No.2 of the Plaint Schedule Property authorizing the Defendant No.3 to sell the same on her behalf?
8) Whether the Plaintiffs further prove that the Sale Deeds dtd: 31.3.2006 executed by the Defendant No.3 as the Power of Attorney holder of the Plaintiff No.1 in favour of the Defendant Nos.1 and 2 in respect of the Item No.1 property is null and void and is liable to be cancelled and set aside?
9) Whether the Plaintiffs further prove that the Sale Deeds dtd: 31.3.2006 executed by the Defendant No.3 as the Power of Attorney holder of the Plaintiff 13 O.S.No.16195/2006 Nos.1 and 2 in favour of the Defendant Nos.1 and 2 in respect of the Item No.2 property is null and void and is liable to be cancelled and set aside?
10) Whether the Defendant Nos.1 and 2 prove that they are the bonafide purchasers of the Plaint Schedule Properties and are the absolute owners of the Plaint Schedule Properties by virtue of the two registered Sale Deeds dtd: 31.3.2006 executed by the Defendant No.3 as the Power of Attorney holder of the Plaintiffs?
11) Whether the Plaintiffs are entitled for the relief of declaration of title and cancellation of the Sale Deeds as prayed for?
12) Whether the Plaintiffs are entitled for possession of the Plaint Schedule Properties from the Defendants?
13) Whether the Plaintiffs are entitled for the relief of permanent injunction in respect of the Plaint Schedule Properties?
14) Whether the Plaintiffs are entitled for the reliefs claimed?
15) What order or decree?
7. To prove their case, the Plaintiff Nos. 1 and 2 got themselves examined as P.W.1 and P.W.3 and one more witness 14 O.S.No.16195/2006 as PW.2 and got marked documents as per Ex.P.1 to Ex.P.66 and closed his side. The Defendant Nos.3 and 1 have got examined themselves as DW.1 and DW.5 and three more witnesses as DW.2 to DW.4 and got marked documents as per Ex.D.1 to Ex.D.48 and closed their side. The Hand Writing expert who was appointed as the Court Commissioner was examined as CW.1 and his report was marked as Ex.C.1. On perusal of the records, it is seen that in the course of cross-examination of CW.1 the Defendants have got marked the notes of CW.1 as Ex.D.46. The exhibit number Ex.D.46 is already given to the document. Therefore, the Ex.D.46 marked through CW.1 is renumbered as Ex.D.48.
8. Heard the learned counsel for the plaintiff and the Defendants.
9. The learned counsel for the Defendant Nos.1 and 2 has relied on the ruling reported in AIR 1995 SC 2145 in the case of Nand Kishore Mehra V/s Sushila Mehra.
10. My answers to the above issues are as follows:-
Issue No.1 : In the Affirmative.
Issue No.2 : In the Affirmative.
Issue No.3 : In the Negative.
15 O.S.No.16195/2006 Issue Nos.4 and 5 : The Plaintiffs have proved their possession over the plaint schedule properties and that the Defendants have dispossessed them and have taken forcible possession of the Plaint Schedule Property from them.
Issue No.6 : In the Negative.
Issue No.7 : In the Negative.
Issue No.8 : In the Affirmative.
Issue No.9 : In the Affirmative.
Issue No.10 : In the Negative.
Issue No.11 : In the Affirmative.
Issue No.12 : In the Affirmative.
Issue No.13 : In the Affirmative.
Issue No.14 : In the Affirmative.
Issue No.15 : As per final orders for the following:
REASONS
11. Issues No.1 to 3 :- The Plaintiffs have contended that they are the absolute owners of the Plaint Schedule Properties and the same was purchased by them with the financial assistance of the parents and the brother of the 1st Plaintiff. The Defendant No.3 who is the husband of Plaintiff No.1 16 O.S.No.16195/2006 has contended that he was working as an Engineer in Tami Nadu Housing Board and he was getting a salary of Rs.15,000/- per month. He had retired from the services on 30.6.2003 and he got Rs.12,00,000/- towards the retirement benefits. He has invested the said amounts for the purchase of the Plaint Schedule Property.
12. The Sale Deeds in respect of the Plaint Schedule Property are produced as per Ex.P.1 and Ex.P.2. These Sale Deeds show that the sale consideration for the purchase of the property is Rs.4,00,000/- each and the same was paid through the demand drafts. These Sale Deeds do not show that the said amount was paid by the Defendant No.3.
13. The Defendant No.3 has produced Ex.D.1 and Ex.D.3 the Power of Attorneys stated to have been executed by the Plaintiffs in favour of the Defendant No.3. These Power of Attorneys are disputed by the Plaintiffs. The Defendant No.3 has contended that there was dispute between the Plaintiff No.1 and himself after the purchase of the property and therefore, after the panchayath the Plaintiff No.1 agreed to execute the Power of Attorney authorising the Defendant No.3 to sell the property.
Therefore, according to Defendant No.3 these power of attorneys 17 O.S.No.16195/2006 are executed after the dispute arose between the Plaintiff No.1 and Defendant No.3. Even in these Power of Attorneys it is stated that the property was purchased by the Plaintiffs by their own self-earnings.
14. The Sale Deeds executed by the Defendant No.3 in favour of the Defendant Nos.1 and 2 in respect of the Plaint Schedule Properties as per Ex.D.27 and Ex.D.28 on 31.3.2006. In these sale deeds also the properties are stated to be the self acquired properties of the plaintiffs. The Defendant No.3 who got examined himself as DW.3 has stated that he has seen the Sale Deeds executed in favour of the Defendant Nos.1 and 2 and the contents of the said sale deeds marked as Ex.D.27 and Ex.D.28 are true. He has stated that he has not objected to the contents of the said Sale Deeds and also Ex.D.1 and Ex.D.4 wherein it is written that the properties are purchased by the self-earnings of the Plaintiffs.
15. Therefore, the documents on record produced by the defendants and the basis on which they claim their right go against the case of the defendants that the properties were purchased by the defendant no. 3 out of his self earnings. Therefore, this documentary evidence supports the case of the 18 O.S.No.16195/2006 Plaintiffs and makes the defence of the Defendant No.3 weak. Therefore, the onus shifts on the Defendants to prove that the properties were purchased out of the financial assistance given by him.
16. The Defendant No.3 has produced Ex.D.6 to Ex.D.8 the bank challans dtd: 3.7.2004 for Rs.5,00,000/- each. Ex.D.6 is of Panjab National Bank which shows that the amount was credited to the account of Divs Consultant, Ex.D.7 and Ex.D.8 are the challans of Indian Bank which shows that the amount was credited to the account of Indu Herbal Beauty Care and D.Indumathi. There is no clear evidence as to why the said amount was credited to the said account and that the amount credited to the said accounts was used to issue the Demand Draft towards the sale consideration.
17. The Plaintiffs or the Defendants have not produced any documents to show the amount from which account was used for drawing the Demand Draft. The mere production of these challans would only show that these amounts were credited to the accounts shown in the challans. But, further proof is required to show that the amount from these accounts is used to draw the Demand Draft. These amounts were deposited by cash. 19 O.S.No.16195/2006 There was no necessity to deposit the amount to the account of the plaintiff no. 1, if the defendant no. 3 wanted to pay this amount. He could have directly obtained the Demand Draft in the name of the Vendors by transferring the amount to his account. There is no necessity that the Demand Draft should be drawn by utilizing the amount in the account of the plaintiffs.
18. The Defendant No.3 has not produced any documents to show that he had the cash of Rs.15,00,000/- on the said date. According to him the property was purchased out of the retirement benefits. The materials on record show that the home taking salary of the Defendant No.3 was only about Rs.10,000/- to Rs.15,000/-. The Defendant has not produced any documents to show that he has received the retirement benefits. In the cross-examination he has stated that after the retirement he has received Rs.6-7 lakhs towards the retirement benefits, but he has no documents to show the same. He has stated that the amount used to purchase the property was his own savings and the amount received by the sale of the property.
19. There is no reason why the Defendant No.3 has to purchase he Plaint Schedule Property in the name of the Plaintiffs as he had retired from the service on 30.6.2003 i.e., before the 20 O.S.No.16195/2006 purchase of the properties. Therefore the permission from his employer for purchase of the property is not necessary. Therefore, the Defendant No.3 could have purchased the properties in his own name. He has not given any explanation as to why the properties were purchased in the name of the Plaintiffs.
20. DW.3 S. Gowravan the brother-in-law and is the signatory to the Ex.D.2, the affidavit stated to have been sworn by the Plaintiff No.1 to the effect that the properties purchased by the Plaintiff No.1 in her name and in the name of her children are out of the earnings of the Defendant No.3. DW.3 is related to Defendant No.3. The wife of DW.3 is the sister of Defendant No.3. In the cross-examination the DW.3 has stated that he signed Ex.D.2 on 10.1.2005 and he was taken to Chennai on 9.1.2005 by the Defendant No.3. In his cross-examination he has admitted that the parents of the 1st Plaintiff are also the relatives and that they are well to do. He has also admitted that he is aware that the 1st Plaintiff was running the Beauty Parlor. He has stated that he does not know about the execution of the General Power of Attorneys in this case.
21. DW.4 A. Yuvaraj is the brother of the Plaintiff No.1. According to DW.4 also the Plaintiff No.1 started to give 21 O.S.No.16195/2006 harassment to the Defendant No.3 after the purchase of properties by the Defendant No.3 in the name of the Plaintiffs and the other children. He has also stated that he is witness to Ex.D.2 and he has stated that Ex.D.2 was prepared on the instruction given by the 1st Plaintiff and himself and DW.3 Gowravan have put their signatures as witnesses to the said documents. He has also stated that subsequently there were lot of problems between the Plaintiff No.1 and Defendant No.3 and she has executed the Power of Attorney in respect of the Plaint Schedule Property in favour of the Defendant No.3. He has stated that his parents or any of the brothers have not paid any amount to the Plaintiff No.1 or to any of his sisters as their husbands were looking after them very well.
22. DW.4 has stated that in the year 2006 when they had held the panchayath the Defendant No.3 and Plaintiff No.1 were residing together. He has stated that in the year 2006 the 1st Plaintiff must have executed the Power of Attorney in favour of the Defendant No.3. But, he does not know about the said Power of Attorney and he knows only about the deed of declaration. But, in his chief examination he has stated that he only aware about the Power of Attorneys. The evidence of DW.4 shows that 22 O.S.No.16195/2006 there is a dispute regarding the partition of the family properties in the family of the Plaintiff No.1 and DW.4.
23. There are no averments about the execution of Ex.D.2 by the Plaintiff No.1 in the written statement filed by the Defendant No.3. Therefore, the Ex.D.2 cannot be given much weightage, because there is no pleading to the said effect and the evidence of DW.3 and DW.4 to prove Ex.D.2 cannot be relied.
24. In the ruling reported in AIR 1995 SC 2145 in the case of Nand Kishore Mehra V/s Sushila Mehra relied by the learned counsels for the Defendants, it is held that since the Plaintiff is the husband who had the right to enter into a benami transaction in the matter of purchase of property in the name of his wife or unmarried daughter, as we have held earlier, he is entitled to enforce his rights in the properties concerned if he can succeed in showing that he had purchased them benami in the name of his wife. But in view of the statutory presumption incorporate in sub-section (2) of Section 3 of the Act, he can get relief sought in the suit only if he can prove that the properties concerned had not been purchased for the benefit of the wife, even if he 23 O.S.No.16195/2006 succeeds in showing that the consideration for the purchases of the properties had been paid by them.
25. In this case there is no pleading that why the property was purchased in the name of his wife leave alone that the property was purchased for the benefit of the wife. Further one item of the property is in the name of the Plaintiff No.2 who is his son. So there is a bar to enforce the right in respect of his share. The attempt of the Defendant No.3 was only to show that the sale consideration is paid by him. No doubt, in this case he has failed to prove the same. Even if it is held that he has proved the same, the Defendant No.3 or the Defendant Nos.1 and 2 cannot succeed, as it is not pleaded and proved that the properties are not purchased for the benefit of wife. Therefore, the above ruling is of no help to the Defendants.
26. The plaintiffs have stated that the properties were purchased out of the financial assistance given by the parents and brother of plaintiff No.1. But there is no convincing evidence to prove that the plaintiff no. 1 was given any financial assistance by them. But this will not affect the case of the plaintiffs as the documentary evidence i.e. the averments in the Sale Deeds and the Ex.D.1 and Ex.D.4 which go against the case of the 24 O.S.No.16195/2006 Defendant No.3 and support the case of the Plaintiffs that the properties are their self-acquired properties. Therefore, it has to be held that the properties were purchased by the Plaintiffs out of their self-earnings and the Defendant No.3 has failed to prove that the Plaintiffs had no income or capacity to purchase the Plaint Schedule Property. Therefore, the Plaintiffs are the absolute owners of the Plaint Schedule Properties by virtue of the Sale Deeds in their favour. Hence, Issue Nos.1 and 2 are answered in the Affirmative and Issue No.3 in the Negative.
27. Issue Nos.6 to 10:- As the finding on this issue will have the bearing on the issue Nos.4 and 5 these issues are taken up first for consideration. As all these issues can be disposed of by common discussion, these are taken up together for discussion.
28. To consider these issues the relevant dates in the chronological order have to be referred. The Sale Deeds in respect of the Plaint Schedule Properties in favour of the Plaintiff Nos.1 and 2 are executed and registered on 14.7.2004. The divorce petition is filed by the Plaintiff No.1 on 23.8.2005 and the decree for divorce was granted on 22.5.2006. Ex.D.1 and Ex.D.4 are the General Power of Attorneys stated to have been executed 25 O.S.No.16195/2006 by the Plaintiffs in favour of the Defendant No.3 are executed on 10.3.2006. The Sale Deeds in respect of the Plaint Schedule Properties in favour of the Defendant Nos.1 and 2 are executed on 31.3.2006.
29. The Plaintiffs have disputed the Power of Attorneys on the following grounds. The Plaintiffs and Defendant No.3 were not residing together at the time of execution of the Power of Attorneys. The divorce petition was filed by the Plaintiff No.1 against the Defendant No.3 on 23.8.2005 and the divorce was granted on 22.5.2006. The Defendant No.3 has contended that he was not aware of the filing of the petition seeking divorce and he was residing along with the Plaintiff No.1 during that time and the decree is obtained without the notice to him. There was no need to the Plaintiff No.2 to execute the General Power of Attorney as he was working in Bangalore itself at that time. When the execution of the power of attorneys is denied by the plaintiffs, the burden is on the defendants to prove the same. Therefore it has to be seen whether the materials on record prove the execution of the power of attorneys by the plaintiffs.
30. The Defendant No.3 has stated in Para No.9 of the written statement that he has handed over the entire amount to 26 O.S.No.16195/2006 the 1st Plaintiff after receiving the sale amount and thereafter she starting giving harassment and use to stay away from the house of the Defendant No.3 at Chennai. The Defendant No.3 has stated that the 1st Plaintiff and the 3rd Defendant intended to alienate the properties situated at Bangalore and the Plaintiffs executed the General Power of Attorney in favour of the Defendant No.3 as the Plaintiff was unable to come and execute the Sale Deed at Bangalore. The 3rd Defendant came to Bangalore and made negotiations with the purchasers and sold the property to A.P. Varadarajulu and Prakasham under the registered Sale Deed dtd: 31.3.2006. He has further stated that after the sale he has handed over the amount to the 1st Plaintiff and after receiving the said amount the plaintiff no.1 started to harass and use to stay away from the house of the Defendant No.3 and failed to look after his younger son. He has stated that he stayed with the 2nd Plaintiff for 15 days at Bangalore, the 2nd Plaintiff neglected the Defendant No.3 at the instigation of the Plaintiff No. 1 and hence he started to reside separately at Bangalore.
31. But, in his chief-examination the Defendant No.3 has given a separate story. In Para No.5 in the last part of his chief- 27 O.S.No.16195/2006 examination has stated that after spending all the amounts of retirement benefits the Plaintiff No.1 started harassing him. He learned from his children that the Plaintiff No.1 having illegal relationship with one Sharagunam. The matter was informed to his brother-in-law Yuvaraj and his sister's husband S. Gowravan and a panchayat was held and they directed the Plaintiff No.1 to live with the Defendant No.3. After the advice for a period of two days she did not leave the house and on third day she went outside with Sharagunam and came back and called her brother Yuvaraj and also the Defendant No.3 to go before the notary and there they purchased the stamp paper with the instructions of the Plaintiff No.1 and she executed the affidavit dtd: 10.1.2005 swearing before the notary at Chennai that all the properties stood in her name and the children were purchased out of the earnings of the Defendant No.3. In Para No.7 of the chief examination the Defendant No.3 has stated that the Plaintiff No.1 left the house and started to live with Sharagunam in his house. The Defendant No.3 called his brother-in-law to settle the dispute amicably and a panchayath was held. During the panchayath the Defendant No.3 has demanded to execute the release deed in respect of the properties that he will keep some of the properties in the name of his children as Sharagunam was making a plan to 28 O.S.No.16195/2006 sell away all the properties. His wife agreed to execute the released deeds, but at that time the persons who had paid hand loans have demanded to repay the said loans. Therefore, Defendant No.3 has requested the Plaintiff No.1 to sell away the properties situated at Bangalore. She refused to come over to Bangalore and agreed to execute the General Power of Attorney in his favour in respect of the properties. It is stated that the Plaintiff No.1 herself called the Plaintiff No.2 who was working in Bangalore. He informed that he will come on 9.3.2006 by applying for leave. The Plaintiff No.1 asked the Defendant No.3 to purchase the stamp paper and prepare the documents on 4.3.2006 and got the document drafted by his advocate and kept the same ready. The Power of Attorneys were executed by the Plaintiff Nos.1 and 2 before the Notary at Peramboor on 10.3.2006 and also the Plaintiff No.2 has executed the declaration that the original Sale Deeds are misplaced. After the execution of these documents the Plaintiff No.1 has driven away the Defendant No.3 out of the house claiming that the house belongs to her and therefore, he left the house in the 3rd week of March 2006 and started living at Thiriyalam Village at Thirupattur Taluk. He intimated his relative Prakasham as he was intended to purchase the property at Bangalore and then he contacted his 29 O.S.No.16195/2006 friend Varadarajulu regarding the purchase of the Plaint Schedule Property and thus the negotiations were held and he has executed the Sale Deed in their favour.
32. The one of the main point that has to be looked into regarding the execution of the Power of Attorney as to when the relationship between the Plaintiff No.1 and the Defendant No.3 was strained. The Plaintiff has alleged that since the inception of the marriage their relationship was strained. But, the Defendant No.3 has pleaded in the written statement that their relationship was strained after the sale of the property in favour of the Defendant Nos.1 and 2 and the Defendant No.3 handed over the sale consideration to the Plaintiff No.1 and the panchayaths were held in this regard. The plaintiff no. 1 has denied the holding of such panchayaths as contended by the defendant no.3. In the evidence, the Defendant No.3 has changed the version and has stated that the Plaintiff No.1 started to give harassment after he spent all his retirement benefits to purchase the properties in the name of the Plaintiff No.1 and their children. He has stated that there was a panchayath in the matter of strained relationship between the Plaintiff No.1 and the Defendant No.3 and the Plaintiff No.1 herself voluntarily executed the Ex.D.2 the declaration affidavit that the properties in her name and in the 30 O.S.No.16195/2006 name of her children were purchased by self-earnings of the Defendant No.3. It is also pleaded that the Plaintiff No.1 left the house with Sharagunam and she again came back and in the panchayath she agreed to execute the release deed in respect of the properties. But, as the Defendant No.3 was in need of money to repay the hand loans, he requested the Plaintiff No.1 to execute the Sale Deed, but the Plaintiff No.1 refused to come to Bangalore to execute the Sale Deed and she executed the Power of Attorney. This case of the Defendant No.3 is not acceptable.
33. The Defendants have not assigned any reason as to why the Plaintiff No.2 has executed the Power of Attorney when he was working in Bangalore itself during the time of execution of the Sale Deed. The reason given in the Power of Attorneys is that the Plaintiffs are not in a position to deal, alienate and execute the documents in respect of the Plaint Schedule Property as they are in Chennai. The averments in the Power of Attorney that the Defendant No.2 is in Chennai is wrong. Further, the last para of the Power of Attorneys shows that the same was executed at Bangalore. It is the specific case of the Defendants that the Power of Attorneys were drafted and executed in Tamil Nadu and they intended it to be executed in Tamil Nadu. The stamp papers were purchased in Tamil Nadu and documents 31 O.S.No.16195/2006 were also notarized in Tamil Nadu. It is stated that the Power of Attorneys were got prepared by an advocate in Tamil Nadu. Therefore, it cannot be accepted that there was a typographical error regarding the place of execution of the Power of Attorneys when according to the Defendants the parties had no intention to execute the Power of Attorneys at Bangalore.
34. This Court is of the opinion that, when a person gets the Sale Deed executed in his favour through a Power of Attorney, it is not sufficient for the purchaser to obtain the Power of Attorney. But, he has to make necessary enquiry regarding the reason for execution of the Power of Attorney and its correctness. Unless he is satisfied about the reason for execution of the Power of Attorney and the reason for not appearing for the execution of the Sale Deed, it cannot be said that the purchaser has made due enquiries and he is the bonafide purchaser. The duty of the purchaser does not end when a person who executed the sale deed produces the Power of Attorney in his favour, but the purchaser has to enquire for the reason and genuineness of the Power of Attorney.
35. The other contention of the Defendant No.3 is that he was living with the Plaintiff No.1 at Chennai and that he was not aware about the filing of the divorce petition as he was living 32 O.S.No.16195/2006 along with the Plaintiff No.2. In the written statement the Defendant No.3 has stated that even after the sale, himself and the Plaintiff No.2 have resided together and the Plaintiff No.1 started to reside away from the house of the 3rd Defendant at Chennai. In his chief-examination the Defendant No.3 has sated that after the execution of the Power of Attorneys and the declaration the Plaintiff No.1 started to give more trouble and she has driven him out of the house and hence he left the house in the 3rd week of March 2006 and started living at Thiriyalam Village at Thirupattur Taluk, where his mother and brothers were residing.
36. Ex.P.65 is the written statement filed on 3.10.2007 by the Defendant No.3 in OS.No.109/2006 in the Court of District Munsiff cum Judicial Magistrate, Vaniyambadi Court. In the said written statement the Defendant No.3 has stated in Para No.13 of the said written statement the Plaintiff cannot allege that there is a strained relationship between the Plaintiff No.1 and the Defendant No.3, the same is stated with an intention to grab the properties of the Defendant No.1 and it was due to the ill-advice of the Sharagunam. Therefore, the Defendant No.3 has 33 O.S.No.16195/2006 been taking different stands regarding fact of his relationship with the Plaintiff No. 2.
37. The Ex.P.18 the letter dtd: 11.10.2015 written by the Defendant No.3 to the Plaintiff No.2 shows that he was in Bangalore at that time. Ex.P.18 is admitted by the Defendant No.3 in his cross-examination that the same is written by him. He has clearly stated that he is residing in Bangalore in the said letter is dtd: 11.10.2005. Therefore, it is clear that on 11.10.2005 the Defendant No.3 was residing separately from the Plaintiff No.1. In this suit the question whether the Defendant No.3 was aware of the divorce petition or not is not very relevant but the relevant fact is whether they were living together as on the date of the execution of the power of attorneys. Ex.P.18 would show that from October 2005 itself the Plaintiff No.1 and Defendant No.3 were residing separately. It is improbable that when the relationship between the husband and wife are strained and the properties are standing in the name of the wife, she would execute the Power of Attorney in favour of her husband. Therefore, the reason given by the Defendant No.3 for execution of the Power of Attorney itself is doubtful.
38. In this case, the Defendant No.1 who got examined as DW.5 has stated that he has not enquired prior to the purchase 34 O.S.No.16195/2006 about the relationship between the Defendant No.3 and the Plaintiff Nos.1 and 2. He has stated that he did not enquire Defendant No.3 as to why the Plaintiff Nos.1 and 2 are not personally appearing for the execution of the Power of Attorney and why the Plaintiffs have given the Power of Attorney to Defendant No.3. He has stated that he was not aware that on the date of execution of the Sale Deed the Plaintiff No.2 was working in Bangalore.
39. The other ground which makes it difficult to believe the case of the Defendants and to accept the case of the Plaintiffs is that the original title deeds are with the Plaintiffs and they have produced the same. The Defendants have contended that the Plaintiff No.1 has sworn to an affidavit/declaration as per Ex.D.3 on 10.3.2006 itself that she has misplaced the original Sale Deeds at the time of renovating her house and the documents are not pledged. The Defendant No.1 in his cross-examination has admitted that no police complaint was lodged regarding the loss of the documents. The Defendant Nos.1 and 2 have not taken proper care to enquire and to find out who has got the original documents. Further, if the Defendant No.3 has purchased the property out of his own earning in the name of the Plaintiff No.1 he should have been in possession of the original documents. 35 O.S.No.16195/2006 The fact that the original documents were in the possession of the Plaintiffs also improbablises the case of the Defendant No.3 that the properties were purchased out of his self-earnings.
40. The materials on record show that it is not in dispute that the Plaintiff No.2 was working in Bangalore at the time of execution of the Sale Deed. It has to be observed that the General Power of Attorney can be given only if the person cannot attend the work personally for valid reason and it cannot be held to be valid if it is given for the reasons given by the Defendant No.3 in his evidence that as the relationship was strained between him and the Plaintiff No.1 she wanted to give the Power of Attorney to him. Further, it is an important that this fact is also not stated in the Power of Attorney. The address of the Defendant No.3 given in Ex.D.1 and Ex.D.4 shows that his address is shown to be in Chennai. But, he was residing at Bangalore during that time as admitted by him.
41. The Defendant No.3 who got himself examined as DW.1 has stated that he has incurred a sum of Rs.40,00,000/- for purchase of all the properties in the name of the Plaintiff No.1 and his children. But, he has not shown the same in his assets and liabilities statements submitted to his superiors. He has admitted that DW.4 Yuvaraj who is the brother of the Plaintiff 36 O.S.No.16195/2006 No.1, is one of the witness to Ex.D.2. It is admitted that there is a civil case pending between the Plaintiff No.1 and DW.4 regarding the partition. Therefore, the evidence of DW.4 cannot be given much weightage without corroboration.
42. The defendant No.3 has produced Ex.D.23 and Ex.D.24 to show that the Plaintiff No.2 was working in Indian Computer Corporation and he was absent from 9.3.2006 to 11.3.2006. But, the Plaintiff No.2 has denied that he was working in the said Firm. Ex.P.66 shows that he was working in Bharath Heavy Electricals Limited during that time. DW.1 has admitted that the Swamipillai who is running the said Firm Indian Computer Corporation is the brother of Gowravan and the said Gowravan is the husband of his sister. He has admitted that Swamipillai has given him Ex.D.24 on his request. Therefore the Ex.D23 and Ex.D24 cannot be given much weightage.
43. The Defendant No.3 has not produced any tax paid receipts to show that he was paying the taxes in respect of these properties. In his cross-examination he has stated that the sale consideration received by him from the defendant No.1 and 2 was not paid to the Plaintiff Nos.1 and 2. But, in his written statement he has specifically stated that the sale consideration was paid to the Plaintiffs.
37 O.S.No.16195/2006
44. The Defendants have examined DW.2 Pradeep Kumar who is the attesting witness to Ex.D.1 and Ex.D.4. But, DW.2 is also the relative of Defendant No.3. His evidence is also contrary regarding the preparation of General Power of Attorneys. DW.2 Pradeep Kumar is the son of Defendant No.2 and also the relative of Defendant No.3. The Defendant No.1 is the friend of Defendant No.2. DW.2 has stated that Selvaraj advocate has prepared the General Power of Attorney on 10.3.2006 and he was present during the said time. It was prepared at 10.00 a.m., on the said date and he signed the General Power of Attorney between 12.00 noon to 1.00 p.m. But, DW.1 in his chief- examination has stated that he has purchased the stamp papers for the preparation of Ex.D.1 and Ex.D.4 on 4.3.2006 and got drafted by his advocate Selvam and got it typed on the stamp paper and waited for the arrival of 2nd Plaintiff from Bangalore and when the 2nd Plaintiff came to Chennai on 9.3.2016 and on 10.3.2006 they went to the notary at Peramboor, Sub-Registrar Office and presented the same before the notary and got executed the documents. Therefore, according to DW.1 the Power of Attorneys were already prepared before 9.3.2006 itself. Therefore, there is a material contradiction in the evidence of DW.1 and DW.2 regarding the preparation of the General Power 38 O.S.No.16195/2006 of Attorneys. DW.2 has stated that at the time of his signing the General Power of Attorneys he was not aware that his father would be purchasing the property and he came to know about the same only in the last week of March 2006. DW.2 has stated that he does not know as to whether the Plaintiffs have executed any other documents apart from the General Power of Attorneys and he knows only about the execution of the General Power of Attorneys. But, in his chief-examination he has stated that apart from the General Power of Attorneys the declaration affidavit was also executed. DW.2 has admitted that at the time of execution of the General Power of Attorney the 3rd Defendant was residing in Bangalore and was doing the work of building planning. He has also admitted that in the year 2006 the Plaintiff No.2 was working in Bangalore.
45. It is relevant to mention that the Defendant No.2 who is one of the purchaser and the father of DW.2 and the relative of DW.1 has not stepped into the witness box. This is because if he is examined there would be more contradictions in the evidence led on behalf of the Defendants.
46. DW.1 has admitted that Ex.P.18 is written by him to the Plaintiff No.2 to inform him that he is residing in Bangalore 39 O.S.No.16195/2006 and in the said letter he has given his mobile number and the address. The Defendant No.1 has produced Ex.P.26 the letter stated to have been written by the Plaintiff No.2 to the Defendant No.3. The said letter is in English. The Plaintiff No.2 has denied the writing of that letter of Defendant No.3. It cannot be believed that the said letter was written by the Plaintiff No.2, because Ex.P.18 which is an admitted document shows that the Defendant No.3 has correspondence with the Plaintiff No.2 in their mother tongue Tamil. Therefore, it is difficult to believe that the Plaintiff No.2 would address the letter in English. Further, the said letter is written on 31.8.2009 and posted on 3.9.2009. It can be said that this letter is created for the purpose of this case and the Defendant No.3 has improved his case at the time of giving evidence and this letter is taken as the supporting document. There was no need to the Plaintiff No.2 to write such a letter to the Defendant No.3 and to deny it in the Court. The Plaintiff No.2 is a major and was working in Bangalore and if there was anything as alleged in the letter he could have given the evidence regarding the same in the open Court and would not have supported his mother.
47. The Plaintiff no. 1 and 2 who got themselves examined as PW1 and PW2 have clearly denied the execution of the power 40 O.S.No.16195/2006 of attorneys and the plaintiff no. 1 has denied the execution of Ex.D2 and Ex.D3 and have withstood the test of cross examination and nothing favourable to the defendants is elicited in their cross examination. The evidence on record makes the case of the plaintiffs more probable. The evidence on record does not satisfactorily prove the due execution of the disputed documents by the plaintiffs.
48. There is a report by the Hand Writing Expert that the signatures found in Ex.D.1, Ex.D.3 and Ex.D.4 are the forged signatures and the signatures found in Ex.D.2 are not forged. The said expert is also examined in the Court. The Defendants and also the Plaintiffs have challenged the report in part and they have cross-examined CW.1 Dr. V. Aravindan. The report of the Hand Writing Expert is opinion evidence and is not conclusive proof. The opinion of the handwriting expert is a weak form of evidence and cannot be given much evidentiary value when the other evidence on record is contrary to the said opinion. This Court is of the opinion that the Court has to first consider the materials on record to find out as to whether the execution of the documents is duly proved and only when the evidence led by the parties is insufficient to come to the right conclusion, then the 41 O.S.No.16195/2006 report of the Hand Writing Expert has to be looked into. This Court is of the opinion that there is no necessity to look into the report of the Hand Writing Expert in this case as the materials as evidence on record are sufficient to decide the fact as to whether Ex.D.1 to Ex.D.4 are duly executed by the Plaintiffs or not. Therefore, the report of the Hand Writing is not relied by the Court in this case.
49. The Defendant No.1 who got himself examined as DW.5 has stated that in his chief examination that before purchasing the Plaint Schedule Property he had verified the title deeds of the Plaint Schedule Property. He has stated that he has also enquired regarding the conduct of the 3rd Defendant as well as the relationship between the Plaintiffs and the 3rd Defendant with the close circle of the Defendant No.3 and he came to know that the 3rd Defendant has purchased the properties in the name of the Plaintiff No.1 and their children. He has stated that he has also learnt that there was a dispute between the 3rd Defendant and the 1st Plaintiff and there was a panchayath in that regard. The chief-examination of the DW.5 would suggest that he has made all enquiries and the circumstances under which the Ex.D.1 to Ex.D.4 were executed. The cross-examination of the Plaintiff No.1 on behalf of the Defendant Nos.1 and 2 also suggest that 42 O.S.No.16195/2006 the Defendant Nos.1 and 2 were aware about the strained relationship between the Plaintiff No.1 and the Defendant No.3 at the time of execution of the alleged Power of Attorney. Further, the Defendant No.2 is the close relative of the Defendant No.3. Therefore, it has to be held that the Defendant Nos.1 and 2 were aware of the strained relationship between the Plaintiff No.1 and the Defendant No.3. Under the said circumstances, any prudent person would enquire with the Plaintiff No.1 herself as to whether she has executed the documents stated to have been executed by her and given to them by the Defendant No.3. There is no such enquiry made by the Defendant Nos.1 and 2. Instead in the cross-examination DW.5 has stated that he has not enquired about the relationship between the Plaintiffs and Defendant No.3 prior to the purchase of the property. He came to know about the same after the registration of the Sale Deed. This shows that the DW.5 is giving contradictory evidence.
50. DW.5 has further stated in his cross-examination that he has not enquired the 3rd Defendant as to why the Plaintiffs have given the General Power of Attorney to Defendant No.3 and why the Plaintiffs are not executing and presenting the Sale Deeds for registration. He has stated that he was not aware that the Plaintiff No.2 was working in Bangalore during that time. It is 43 O.S.No.16195/2006 an admitted fact that the original title deeds were not handed over to the Defendant Nos.1 and 2. The Defendant Nos.1 and 2 have only believed on the alleged declaration stated to have been given by the Plaintiff No.1 before the notary and handed over to them by the Defendant No.3. They have stated that no paper publication was given regarding the loss of the title deeds and no police complaint was given regarding the same. Therefore, it is clear that the Defendant Nos.1 and 2 have not made proper enquiries and have not acted like a prudent man before purchasing the property. The materials on record makes this Court to hold that the case of the Plaintiffs that the Defendant Nos.1 to 3 have colluded together in this transaction is more probable. Therefore, this Court holds that the Defendant Nos.1 and 2 cannot be held as the bonafide purchasers of the Plaint Schedule Properties.
51. Therefore this Court holds that the Defendants have failed to prove that the Plaintiff No.1 has duly executed the Power of Attorney dtd: 10.3.2006 in favour of the Defendant No.3 in respect of the Item No.1 of the Plaint Schedule Property authorizing the Defendant No.3 to sell the same on her behalf and that the Plaintiff Nos.1 and 2 have duly executed the Power 44 O.S.No.16195/2006 of Attorney dtd: 10.3.2006 in favour of the Defendant No.3 in respect of the Item No.2 of the Plaint Schedule Property authorizing the Defendant No.3 to sell the same on her behalf and that they are the bonafide purchasers of the Plaint Schedule Properties and are the absolute owners of the Plaint Schedule Properties by virtue of the two registered Sale Deeds dtd:
31.3.2006 executed by the Defendant No.3 as the Power of Attorney holder of the Plaintiffs. Hence Issue No. 6, 7 and 10 are answered in the Negative.
52. In view of the finding that it is not proved that the Plaintiffs have executed the disputed Power of Attorneys, it has to be held that the Plaintiffs have proved that the Sale Deeds dtd: 31.3.2006 executed by the Defendant No.3 as the Power of Attorney holder of the Plaintiff No.1 in favour of the Defendant Nos.1 and 2 in respect of the Item No.1 property and the Sale Deeds dtd: 31.3.2006 executed by the Defendant No.3 as the Power of Attorney holder of the Plaintiff Nos.1 and 2 in favour of the Defendant Nos.1 and 2 in respect of the Item No.2 property are null and void and are liable to be cancelled and set aside. Hence Issue Nos.8 and 9 are answered in the Affirmative.
53. Issue Nos.4, 5 and 12:- The plaintiffs have proved the ownership over the plaint schedule properties. The 45 O.S.No.16195/2006 Defendants No.1 and 2 are claiming the right, title and possession over the property through the plaintiffs from their power of attorney holder. It is an admitted fact that the Defendants No.1 and 2 are in possession of the plaint schedule properties by virtue of the sale deeds in their favour and now it is held that the said sale deeds are not valid and therefore the defendants No.1 and 2 are in wrongful possession of the plaint schedule properties. Therefore the plaintiffs are entitled for possession of the plaint schedule properties from the Defendants No.1 and 2. Under the above circumstances now the question as to when the plaintiffs were dispossessed loses significance. Therefore it is not necessary to find give a finding as to when the plaintiffs were dispossessed. Hence it is sufficient if it is held that the plaintiffs were in possession of the properties by virtue of the sale deeds in their favour and the defendants got the wrongful possession of the properties in pursuance of the invalid sale deeds in their favour. Hence this Court holds that the Plaintiffs have proved their possession over the plaint schedule properties and that the Defendants have dispossessed the Plaintiffs and have taken forcible possession of the Plaint Schedule Property from them and that they are entitled for possession of the plaint 46 O.S.No.16195/2006 schedule properties from the defendants. Hence Issue Nos. 4 and 5 are answered as above and Issue No. 12 in the Affirmative.
54. Issue No.11:- In view of the Plaintiffs proving that the General Power of Attorneys on the basis of which the sale deeds in favour of the defendant nos. 1 and 2 are executed are not genuine documents, the said sale deeds are liable to be cancelled and the ownership continues with the plaintiffs. Therefore, the Plaintiffs are entitled for the relief of declaration of title and cancellation of the Sale Deeds as prayed by them. Hence this Issue is answered in the Affirmative.
55. Issue No.13:- The plaintiffs apprehend that the defendants would interfere with their possession over the plaint schedule properties. Considering the fact that there are sale deeds in favour of the defendants nos. 1 and 2 and the defendant no. 3 claims that the properties were purchased out of his earnings, this apprehension of the plaintiffs is well founded. Therefore there are chances that the defendants would interfere with the possession of the plaintiffs even after they secure the possession of the plaint schedule properties from the defendants. Therefore, the Plaintiffs must be granted the relief of permanent injunction in respect of the Plaint Schedule Properties after the 47 O.S.No.16195/2006 plaintiffs are put in possession of the plaint schedule properties. Hence this Issue is answered in the Affirmative.
56. Issue No14:- In view of this Court answering all the issues in favour of the Plaintiffs, the Plaintiffs are entitled for the reliefs claimed in the suit. Hence this Issue is answered in the Affirmative.
57. Issue No.15 :- In the result, this Court proceeds to pass the following:-
ORDER The suit of the plaintiff is decreed with costs. It is declared that the Plaintiff No.1 is the absolute owner of the Item No.1 of the Plaint Schedule Property and the Plaintiffs are the joint absolute owners of the Item No.2 of the Plaint Schedule Property.
The registered Sale Deed dtd: 31.3.2006 executed on behalf of Mrs. B. Indumathi by Mr. V. Devan in favour of Sri.A.P.Varadharajulu and Sri. T. Prakasam registered as document No.KRI-1-26061-2005-06 Book I CD No.KRID202 dtd:31.3.2006 of SRO, Krishnarajapura is set aside and cancelled.
The registered Sale Deed dtd: 31.3.2006 executed on behalf of Mrs. B. Indumathi and Mr. D.I. Vijay Anand by 48 O.S.No.16195/2006 Mr.V.Devan in favour of Sri.A.P.Varadharajulu and Sri.T.Prakasam registered as document No.KRI-1-26057-2005-06 Book I CD No.KRID202 dtd: 31.3.2006 of SRO, Krishnarajapura, is set aside and cancelled.
The Defendants No.1 and 2 are directed to hand over the vacant and peaceful possession of the Item No.1 of the Plaint Schedule Properties to the Plaintiff No.1 and the Item No.2 property jointly to the Plaintiff Nos.1 and 2.
After the Plaintiffs are put in possession of the Plaint Schedule Properties the Defendants and the persons claiming through or under them are restrained by way of permanent injunction from interfering with the possession of the Plaintiffs over the plaint schedule properties.
Draw up decree accordingly.
(Dictated to the Stenographer, transcript thereof, corrected, signed and then pronounced by me in the open Court on this the 30th day of October 2017].
[ J.R.MENDONCA ], XXVIII Addl. City Civil & Sessions Judge, Mayo hall, Bangalore.49 O.S.No.16195/2006
ANNEXURE
1. List of witnesses examined for the plaintiffs:-
P.W.1 : D. Indumathi. P.W.2 : V. Jayaraman. P.W.3 : D.I. Vijayanand. 2. List of documents marked:- Ex.P 1 : Sale Deed dtd: 14.7.2004 executed by Mrs.
Sapphire Anuroop Dholakia represented by GPA Mrs. Kaushal Bhavnath Dholakia in favour of Mrs. D. Indumathi and Mr. D.I. Vijay Anand.
Ex.P 2 : Sale Deed dtd: 14.7.2004 executed by Mrs. Sapphire Anuroop Dholakia represented by GPA Mrs. Kaushal Bhavnath Dholakia in favour of Mrs. D. Indumathi.
Ex.P 3&4 : Assessment Extracts. Ex.P 5 to 8 : Tax Paid Receipts. Ex.P 9 : Certified copy of the divorce petition in
O.P.No.1786/2005 filed by Smt. Indumathi.
Ex.P 10 : Certified copy of the counter affidavit filed by the Respondent in O.P.No.1786/2005.
Ex.P 11 : Certified copy of the affidavit of Petitioner in O.P.No.1786/2005.
Ex.P 12 : Certified copy of the affidavit of V. Devan in O.P.No.1786/2005.
Ex.P 13 : The Dinamallar Tamil daily News Paper dtd:
7.2.2008.50 O.S.No.16195/2006
Ex.P 13(a) : Relevant portion notice in news paper. Ex.P 13(b) : English Translation of Ex.P.13(a). Ex.P 14 : The Tamil daily news paper dtd: 19.4.2007. Ex.P 14(a) : Relevant portions in news paper.
Ex.P 14(b) : English Translation of Ex.P.14(a) Ex.P 15 : The Tamil daily news paper dtd: 20.4.2007. Ex.P 15(a) : Relevant portions in news paper.
Ex.P 15(b) : English Translation of Ex.P.15(a). Ex.P 16 & : Loan Cards for having taken loan in Indian 17 Bank to run Beauty Parlor by the Plaintiff.
Ex.P 18 : Inland letter written by 3rd Defendant.
Ex.P 18(a) : Visiting Card of V. Devan.
Ex.P 18(b) : English Translated copy of Ex.P.18,
Ex.P 19 : Certified copy of the order sheet in
OS.No.4269/2006 filed by the Plaintiff.
Ex.P 20 : Certified copy of the memo filed in
OS.No.4269/2006 for closing the case.
Ex.P 21 to : Photographs.
35
Ex.P 21(a) : Negatives.
to
35(a)
Ex.P 36 & : Encumbrance Certificates.
37
Ex.P 38 : Office copy of letter addressed by
Smt.Indumathi to BESCOM.
Ex.P 38(a) : Signature of Vijay Anand.
Ex.P 39 : Office copy of police complaint dtd:
51 O.S.No.16195/2006
10.5.2006 lodged by Smt.Indumathi and
another.
Ex.P 40 : Acknowledgement given by Police
Commissioner.
Ex.P 41 : Acknowledgement given by Sub-Inspector for
having received the complaint.
Ex.P 42 to : Photographs.
55
Ex.P 42(a) : Negatives.
to
55(a)
Ex.P 56 : Paper publication dtd: 28.2.2006 regarding
another case of Plaintiffs in Madras.
Ex.P 56(a) : Relevant portion of paper publication.
Ex.P 57 : Certified copy of the FIR registered against
Defendant Nos.1 to 3 in Madras.
Ex.P 58 : Marriage Invitation Card of Hindumathi and
Devan.
Ex.P 59 to : Pay Slips of Devan.V Tamilnadu Housing 61 Board.
Ex.P 62 & : Pay slips.
63
Ex.P 64 : Plaint in OS.No.109/2006 before
Vaniyambadi Court.
Ex.P 65 : Written statement in OS.No.109/2006 before
Vaniyambadi Court.
Ex.P 66 : Relieving letter of Mr. Vijay Anand from
Bharat Heavy Electricals Limited.
52 O.S.No.16195/2006
3. List of witnesses examined for the defendants:-
DW.1 : V. Devan.
DW.2 : Pradeep Kumar.
DW.3 : S. Gauravan.
DW.4 : A. Yuvaraj.
DW.5 : Varadarajulu.
4. List of documents marked:-
Ex.D 1 : General Power of Attorney dtd: 10.3.2006
executed by Mrs.D. Indumathi in favour of
Mr. V. Devan.
Ex.D 1(a) : Signature of D. Indumathi.
Ex.D 1(b) : Signature of D. Indumathi.
Ex.D 1(c) : Signature of Pradeep Kumar.
Ex.D 1(B) : Relevant portion in General Power of
Attorney execution date.
Ex.D 2 : Affidavit dtd: 10.1.2005 in Tamil of D.
Indumathi.
Ex.D 2(a) & : Signatures of D. Indumathi.
2(b)
Ex.D 2(c) & : Signatures of witnesses.
2(d)
Ex.D 2(e) & : Portions of certification by advocate in two
2(f) pages.
Ex.D 2(g) : Signature of advocate.
Ex.D 2(B) : English translation of sworn affidavit dtd:
10.1.2005.
Ex.D 3 : Declaration affidavit dtd: 10.3.2006 by
Smt.D. Indumathi.
53 O.S.No.16195/2006
Ex.D 4 : General Power of Attorney dtd: 10.3.2006
executed by Smt. D. Indumathi in favour of
Mr. V. Devan.
Ex.D 4(a) & : Signatures of Smt. D. Indumathi.
4(b)
Ex.D 4(c) & : Signatures of D. Vijay Anand.
4(d)
Ex.D 4(e) & : Signatures of witnesses.
4(f)
Ex.D 4(B) : Relevant portion of date in words in GPA.
Ex.D 5 : Affidavit filed in OS.16195/06 by
Smt.Indumathi.
Ex.D 6 to : Bank challans of Punjab National Bank and
20 Indian Bank.
Ex.D 21 & : Bank passbook of Mr. V. Devan of A/c
22 No.7244 of The Tamil Nadu State Apex Co-
operative Bank Limited.
Ex.D 23 : Letter from Indian Computer Corporation
regarding leave of 2nd Plaintiff.
Ex.D 24 : Muster roll for having attended duty by 2nd
Plaintiff.
Ex.D 25 : Deposition of Plaintiff No.1 as DW.1 in Tamil
in OS.No.109/2006 before Vaniyambadi
Court.
Ex.D 25(a) : Translated copy of deposition of DW.1 in
English.
Ex.D 26 : Letter addressed by 2nd Plaintiff.
Ex.D 26(a) : Signature of 2nd Plaintiff.
Ex.D 27 : Absolute Sale Deed dtd: 31.3.2006 executed
54 O.S.No.16195/2006
by Smt. Indumathi and Mr. V. Devan in
favour of Sri. A.P. Varadarajulu and
Sri.T.Prakasam.
Ex.D 28 : Absolute Sale Deed dtd: 31.3.2006 executed
by Smt. Indumathi and Mr. D.I. Vijay Anand
in favour of Sri. A.P. Varadarajulu and
Sri.T.Prakasam.
Ex.D 29 : Certified copy of the Sale Deed
dtd:13.12.1994.
Ex.D 30 : Certified copy of the Sale Deed dtd:
13.12.1994.
Ex.D 31 to : Land Tax Assessment register extract.
34
Ex.D 35 & : Tax paid receipts.
36
Ex.D 37 & : Electric bills.
38
Ex.D 39 : Agreement for permanent power supply to
non-commercial lighting dtd: 8.5.2006.
Ex.D 40 : Receipt for purchase of meter.
Ex.D 41 to : Encumbrance certificates.
45
Ex.D 46 : 29 Post office receipt.
Ex.D 47 : Receipt of Aptech Computer Education of D.I.
Vijay Anand.
Ex.D 48 : Notes prepared by CW.1.
5. List of witnesses examined:-
CW.1 : Dr. V. Aravindan.
55 O.S.No.16195/2006
6. List of documents marked:-
Ex.C 1 : Certificate of examination dtd: 20.9.2014
from State Forensic Science Laboratory.
Ex.C 1(a) : Signature of CW.1.
Ex.C 1(b) : Question signatures and admitted signatures
of Indumathi before the Court.
(J.R.Mendonca)
XXVIII ADDL.CITY CIVIL JUDGE
BANGALORE
56 O.S.No.16195/2006
Judgment pronounced in open court
vide separate judgment :-
ORDER
The suit of the plaintiff is decreed with costs. It is declared that the Plaintiff No.1 is the absolute owner of the Item No.1 of the Plaint Schedule Property and the Plaintiffs are the joint absolute owners of the Item No.2 of the Plaint Schedule Property.
The registered Sale Deed dtd: 31.3.2006 executed on behalf of Mrs. B. Indumathi by Mr. V. Devan in favour of Sri.A.P.Varadharajulu and Sri. T. Prakasam registered as document No.KRI-1-26061-2005-06 Book I CD No.KRID202 dtd:31.3.2006 of SRO, Krishnarajapura is set aside and cancelled.
The registered Sale Deed dtd: 31.3.2006 executed on behalf of Mrs. B. Indumathi and Mr. D.I. Vijay Anand by Mr.V.Devan in favour of Sri.A.P.Varadharajulu and Sri.T.Prakasam 57 O.S.No.16195/2006 registered as document No.KRI-1-26057-2005-06 Book I CD No.KRID202 dtd:31.3.2006 of SRO, Krishnarajapura, is set aside and cancelled.
The Defendants No.1 and 2 are directed to hand over the vacant and peaceful possession of the Item No.1 of the Plaint Schedule Properties to the Plaintiff No.1 and the Item No.2 property jointly to the Plaintiff Nos.1 and 2.
After the Plaintiffs are put in possession of the Plaint Schedule Properties the Defendants and the persons claiming through or under them are restrained by way of permanent injunction from interfering with the possession of the Plaintiffs over the plaint schedule properties.
Draw up decree accordingly.
(J.R.Mendonca) XXVIII ADDL.CITY CIVIL JUDGE BANGALORE 58 O.S.No.16195/2006