Andhra Pradesh High Court - Amravati
Vella Satya Rajendra Krishna, vs Smt. Vella Saroja Devi on 7 October, 2023
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
APPEAL SUIT NO.125 OF 2017
JUDGMENT:-
The judgment, dated 22.06.2016 in O.S.No.29 of 2013, on
the file of Special Judge for Trial of Cases under SCs & STs
(POA) Act-cum-Additional District & Sessions Judge,
Vizianagaram ("Additional District Judge" for short), is under
challenge in the present Appeal Suit filed by the unsuccessful
first defendant.
2) The parties to this Appeal Suit will hereinafter be
referred to as described before the learned Additional District
Judge for the sake of convenience.
3) The case of the plaintiff, in brief, according to the
averments in the plaint before the learned Additional District
Judge, is that she is absolute owner of the RCC building property
bearing D.No.12-10-3, Assessment No.1093023917, Plot No.60
in S.No.112/2 in Vizianagaram 2nd bit, Vizianagaram
Municipality, Vizianagaram. She purchased the vacant site on
11.01.1983 from Guntuboyina China Suryanarayana and others
by means of Registered Sale Deed No.55/1983, registered in
Vizianagaram Sub-Registrar Office. Since the date of purchase,
she was in possession and enjoyment of the same. She has one
son i.e., the first defendant, Satya Ramendra Krishna, who is a
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permanent resident of Visakhapatnam. She has five daughters
viz., Satyakala, Parvin, Bhagyalakshmi, Rohini and Phanimala.
They are all well settled. They used to live separately from the
plaintiff. The first defendant never looked after her at any time.
Except the schedule property, plaintiff has no other property to
live and to maintain herself. She is old aged and she has to
meet her all livelihood needs. While so, her children including
the first defendant used to quarrel with her on one pretext or
the other to grab the schedule property from the plaintiff and
also threatened her. The plaintiff approached the II Town Police
Station on 21.08.2008 seeking police protection against her all
children on a day of annual death function of her husband to be
held on 13.09.2008. Police issued a receipt bearing
No.375/2008, dated 21.08.2008. On coming to know that the
first defendant came to Vizianagaram and made conspiracy with
his friends, the plaintiff again approached the II Town Police on
10.10.2009 and made a report. II Town Police issued a receipt
bearing No.587/2009, dated 10.10.2009. Even thereafter, the
plaintiff has no good relations with the first defendant and her
daughters. While so, taking advantage of the illiteracy and
innocence of the plaintiff, the first defendant with the help of his
wife Shanti @ Shanti Krishna and two others fraudulently
misrepresented the plaintiff, as if the registered Sale Deed
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No.55/1983, dated 11.01.1983, was called upon by the Sub-
Registrar, Vizianagaram, for computerization of the said
documents. While so, they fraudulently got the plaintiff's
signatures and thumb marks and photos. Subsequently, on
30.03.2013 the plaintiff and her daughters were called by the
S.I. of Police, II Town Police Station, Vizianagaram. On
31.03.2013 the plaintiff and one of her daughters by name
Bhagya Lakshmi attended before S.I. of Police II Town Police
Station, Vizianagaram. Then they came to know from the S.I. of
Police that the first defendant lodged a report against the
plaintiff that she is not giving possession though executed
registered gift deed and that the plaintiff and her daughters are
threatening the first defendant, as such, police protection is
requested. On 31.03.2013 the first defendant did not attend
before II Town Police Station, Vizianagaram. In his absence, the
police conducted enquiry and recorded their statements. The
plaintiff told the police that she never gave any gift in the shape
of Rs.12,00,000/- to the first defendant either on 09.04.2012 or
subsequent to that date and she never gave any gift in the
shape of cash of Rs.12,00,000/- to the wife of the first
defendant. The first defendant and his wife conspired
themselves and made a fraudulent plan to grab cash of
Rs.12,00,000/- and they succeeded in their illegal attempt under
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which the wife of the first defendant through RTGS
Transfer/SH231916, dated 09.04.2012 fraudulently transferred
the money of plaintiff, which was kept in Andhra Bank bearing
Account No.060910025701725 into the account of first
defendant's wife. The first defendant represented before II Town
Police that his mother gave gift of Rs.12,00,000/- which is an
illegal and fraudulent representation. The plaintiff reserved her
right to file a separate suit for recovery of Rs.12,00,000/- from
first defendant and his wife. On 01.04.2013 the plaintiff made
enquiry about the gift deed bearing No.1998/2012, dated
12.04.2012 before the Sub-Registrar Office, Vizianagaram and
she came to know that the first defendant mortgaged the
property to the second defendant for Rs.1,00,000/- by executing
a simple mortgage deed with the help of Registered Gift Deed
bearing document No.1998/2012, dated 12.04.2012. The
plaintiff did not deliver the possession of the property to the first
defendant at any time. She is residing in the ground floor and
she got household ration card to that effect. The plaintiff is
paying house tax to the Vizianagaram Municipality for the
schedule property. The gift deed alleged by the first defendant
was obtained only by playing fraud and misrepresentation, as
such, it is liable to be cancelled and the mortgage, if any, by the
first defendant to the second defendant is not valid and binding
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on the plaintiff. The plaintiff is not aware of the contents of the
gift deed. The first defendant took the illiteracy of the plaintiff as
an advantage and obtained a fraudulent gift deed. Hence, the
suit to cancel the gift deed.
4) The first defendant before the learned Additional
District Judge got filed a written statement denying the case of
the plaintiff and his contention, in brief, according to the
contents of written statement, is that the gift deed was executed
by the plaintiff in favour of the first defendant on 12.04.2012 at
her free will and pleasure. It was the duty of the Sub-Registrar
to explain the contents of the document and only after thorough
satisfaction from the executant about the knowledge and
contents of the document, he will sign the document for
registration. It is false that the first defendant obtained gift deed
by playing fraud. The plaintiff is well educated and a woman
moving in high society with all voluntary service oriented
organizations. She kept quiet for a long time and she filed a suit
for cancellation of gift deed belatedly. The allegations of the
plaintiff against the first defendant are nothing but unnatural.
The plaintiff sold away an apartment on 23.12.2009 for about
Rs.20,00,000/- along with her daughter and she also sold away
another property on 02.02.2009 for about Rs.20,00,000/- and
the entire amount was taken away by her. She has also other
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immovable properties. After the death of her husband, on
21.09.2007, the first defendant used to look after his mother
with love and affection and provided all amenities. So, the
plaintiff with her free will and love and affection gifted the
schedule property to the first defendant. The allegations with
regard to the transfer of money of Rs.12,00,000/- from the bank
account of the plaintiff to the bank account of first defendant
deserves no answer, as plaintiff can avail the remedies available
under law against the wife of the first defendant. Unless there is
any clause in the gift deed, it cannot be cancelled. Even now the
first defendant used to pay Rs.20,000/- to his mother towards
her maintenance. Plaintiff is not living in the schedule property.
At present, she is at Chennai at her daughter's house. The first
defendant is residing in ground floor and first floor. Hence, the
suit is liable to be dismissed.
5) The second defendant got filed a written statement
denying the case of the plaintiff and his contention is that the
concerned Sub-Registrar has to ask the donor of the document
about free will and consent and after satisfying about the same
only, he would allow for registration. The allegations raised by
the plaintiff are all false. The first defendant approached the
second defendant for obtaining loan and the second defendant
after making necessary enquiry with regard to the title of the
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property granted loan to the first defendant. The first defendant
executed a simple mortgage deed for nominal amount in favour
of the second defendant. Being a mortgagee, the second
defendant has absolute right to proceed with the suit schedule
property in the event of default by the first defendant. Hence,
the suit is liable to be dismissed.
6) On the basis of the above pleadings, the learned
Additional District Judge, settled the following issues for trial:
(1) Whether the gift deed is obtained by the defendant by
fraud?
(2) Whether the gift deed cannot be cancelled under Section
126 of the Transfer of Property Act?
(3) Whether the suit is maintainable under law?
(4) To what relief?
7) During the course of trial, on behalf of the plaintiff
before the Additional District Judge, P.W.1 to P.W.4 were
examined and Ex.A.1 to Ex.A.6 and Ex.X.1 to Ex.5 were marked.
On behalf of the first defendant, D.W.1 and D.W.2 were
examined. It is evident from the record that on behalf of the
second defendant, no witnesses were examined.
8) The learned Additional District Judge on conclusion
of the trial and on considering the oral as well as documentary
evidence, answered the issues in favour of the plaintiff, as such,
decreed the suit of the plaintiff with costs by cancelling Ex.A.1,
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gift settlement deed as null and void and further directing the
first defendant to pay exemplary costs of Rs.1,000/-. Felt
aggrieved by the same, the unsuccessful first defendant filed the
present Appeal Suit.
9) Now, in deciding the appeal, the points that arise for
consideration are as follows:
(1) Whether the plaintiff before the learned Additional District
Judge proved her entitlement to seek cancellation of Ex.A.1, gift
settlement deed, as vitiated by fraud and misrepresentation?
(2) Whether the judgment and decree of learned Additional
District Judge is sustainable under law and facts and whether
there are any grounds to interfere with the same?
(3) To what relief?
Point Nos.1 and 2:
10) P.W.1, the plaintiff before the learned Additional
District Judge, got filed her chief examination affidavit adverting
to the plaint averments. Through her examination, Ex.A.1 to
Ex.A.6 were marked i.e., Ex.A.1 is certified copy of Registered
Settlement Deed, dated 12.04.2012, Ex.A.2 is receipt issued by
the Station House Officer, dated 10.10.2009, Ex.A.3 is receipt
issued by the Station House Officer, dated 21.08.2008, Ex.A.4 is
property tax demand notice, dated 26.01.2012, Ex.A.5 is tax
payment receipt, dated 26.04.2012 and Ex.A.6 is Household
ration card.
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11) The plaintiff further examined P.W.2, who deposed
that he is the Assistant Manager, Andhra Bank, Vizianagaram.
He is summoned to produce the documents pertaining to
account of Vella Saroja Devi, S.B. Account bearing Account
No.060910025701725. He brought the account cheque issued
by Saroja Devi in favour of Indian Bank account of
Seethammapeta Branch for Rs.12,00,000/-. Ex.X.1 is the said
cheque. He also brought the requisition slip for RTGS, made by
Saroja Devi on 09.04.2012. Ex.X.2 is the said requisition slip
marked. Ex.X.2 requisition made was under RTGS in favour of
Shanti Krishna.
12) The plaintiff further examined P.W.3, who is the
Assistant Sub-Inspector, II Town Police Station, Vizianagaram to
prove that previously P.W.1 lodged reports against her children.
The evidence of P.W.3 is that Ex.A.3 is the acknowledgement
given by them for the complaint copy made by Saroja Devi,
plaintiff. Ex.X.3 is the said original complaint pertaining to
Ex.A.3 receipt. Ex.X.4 is the statement of Saroja Devi, recorded
by them. Ex.A.2 is another receipt given by them on 10.10.2009
on the report given by Saroja Devi. The Entry is also present in
the register of complaints. The receipt number is 587/2009
(tallied with Ex.A.2 receipt). There is no report corresponding to
Ex.A.2 receipt available. The plaintiff's son i.e., the first
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defendant also gave a report to Superintendent of Police, who
forwarded the same to S.I. of Police on 13.03.2013. Ex.X.5 is
the said endorsement given by Superintendent of Police.
13) The plaintiff further examined one of the daughters
by name Smt. Vella Bhagya Lakshmi as P.W.4 and the chief
examination of affidavit of P.W.4 is in support of the case of the
plaintiff.
14) The first defendant got filed his chief examination
adverting to his case as narrated in the written statement.
During the cross examination of D.W.1, Ex.B.1, a copy of report
given by him on 09.03.2013 to Inspector of Police is marked.
The first defendant further examined D.W.2 the so-called scribe
of Ex.A.1, who deposed that he drafted original of Ex.A.1
executed by P.W.1 in favour of the first defendant. He scribed
original of Ex.A.1 as per the instructions given by P.W.1.
Generally, the Sub-Registrar will read the contents of document
to the executants only after confirmation, he will register it. He
will make the endorsement to that effect on the back of the said
document. There are two attesters in Ex.A.1. He signed as
scribe in Ex.A.1. P.W.1 signed in each page of the document in
his presence.
15) Smt. S. Lakshmi Prameela, learned counsel,
representing Sri Kuriti Bhaskara Rao, learned counsel for the
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appellant, would canvass the facts as mentioned in the written
statement of the first defendant. She would contend that there
is no dispute about the relationship of the plaintiff and the first
defendant. As the first defendant took care of the plaintiff after
the demise of her husband and treated her well, the plaintiff
thought of to create rights in favour of the first defendant under
Ex.A.1 in respect of the house property and in pursuance of that
only, the plaintiff executed Ex.A.1 gift-cum-settlement deed in
favour of the first defendant. It was executed in accordance
with the provisions of the Transfer of Property Act by way of a
registered document. Ex.A.1 gift deed was acted upon because
the possession was delivered on the date of Ex.A.1. Ex.A.2 and
Ex.A.3, the so-called receipts for the complaints lodged by the
plaintiff against her children were in the year 2008 and 2009,
which cannot be a basis to the trial Court to see that there was
animosity between the plaintiff and the first defendant. In fact,
being influenced by P.W.4 only, the plaintiff thought of to file a
suit with invented allegations. When the plaintiff was creating
trouble with regard to the enjoyment of the property by first
defendant, first defendant lodged Ex.B.1. The contention of the
plaintiff that by fraud and misrepresentation, Ex.A.1 was
obtained by the first defendant in collusion with his wife is
nothing but false. Ex.A.1 was a registered document and the
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Sub-Registrar was supposed to explain the contents thereof to
the executants. The plaintiff did not examine the witnesses to
Ex.A.1. On the other hand, it is the first defendant, who
examined D.W.2 to prove the due execution of Ex.A.1. The
plaintiff was highly educated and she was carrying respect in the
society, as such, she cannot pretend innocence or ignorance as
to the contents of Ex.A.1. It was only after thought that she
instituted the suit against the first defendant upon the influence
made by her daughters. In fact, the plaintiff also transferred a
sum of Rs.12,00,000/- under Ex.B.1 and Ex.B.2 in favour of the
wife of the first defendant and later alleged that it was also by
way of fraud and misrepresentation. The trial Judge did not
consider the evidence in proper perspective. The trial Judge
erroneously believed the case of the plaintiff. The evidence of
D.W.1 and D.W.2 proves that the plaintiff executed Ex.A.1
voluntarily in favour of the first defendant conveying the plaint
schedule property. The evidence of P.W.1 and P.W.4 is not at
all convincing. The evidence of P.W.2 and P.W.3 was of no use
in the absence of establishing any fraud. With the above
submissions, the learned counsel would submit that the appeal
is liable to be allowed by setting aside the judgment of the trial
Court.
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16) Dr. Majji Suri Babu, learned counsel appearing for
the respondent, would contend that the contents of Ex.A.1 gift
deed as if out of love and affection, the plaintiff executed Ex.A.1
in favour of the first defendant was attacked by the plaintiff by
relying upon various circumstances before the learned Additional
District Judge. It was a case right from death of the husband of
the plaintiff bad blood flowing especially between the plaintiff
and the first defendant. Anticipating a quarrel and violence,
plaintiff lodged two reports with the police in the year 2008 and
2009 and they were brought in evidence. As on the date of
alleged Ex.A.1, the plaintiff was residing in the plaint schedule
property. The first defendant never resided in Vizianagaram
along with the plaintiff. There was no explanation from the first
defendant as to how he came into possession of the plaint
schedule property. No piece of paper was filed in this regard.
The suggestions put forth before P.W.1, which were denied, and
the admissions made by D.W.2 show that he was residing in
Visakhapatnam only and he was not residing in Vizianagaram.
The plaintiff had no other residential property to reside. In fact,
in the year 1983 she purchased vacant site and later
constructed the house with her own sources. The alleged Ex.A.1
also contained the said whisper because the first defendant got
the same mentioned. During cross examination of P.W.1, the
first defendant tried to set up a theory as if the property was
purchased with the source of his father. D.W.1 in cross
examination further deposed falsely that everybody in the family
contributed for construction of the said house. Though the
plaintiff denied the execution of Ex.A.1, but even it alleges that
the property was purchased by the self-earnings of the plaintiff
and later with her own funds she constructed the house.
Therefore, the conduct of the first defendant can be inferred
from the suggestions put forth before P.W.1 and answers in
cross examination. It is never the case of the first defendant
that what all the properties which were sold away by the plaintiff
were the joint family properties. The first defendant had no
semblance of right over the properties possessed by the
plaintiff. Thus, when she had no other residential property, it is
quite improbable that she would convey the property in favour
of the first defendant. Apart from this, she had no necessity to
transfer a sum of Rs.12,00,000/- in the name of the wife of first
defendant. The first defendant and his wife further played fraud
and got transferred Rs.12,00,000/- to the account of the first
defendant's wife, which is the subject matter in A.S.No.787 of
2017. D.W.1 pretended ignorance as to whether who filled up
Ex.B.1 contents cheque and the contents of RTGS application.
All these goes to show the fraud and misrepresentation made by
the first defendant. The allegations of fraud and
misrepresentation have to be proved by relying upon the
circumstances. The various circumstances referred to above
prove that Ex.A.1 is vitiated with fraud and misrepresentation.
The evidence of D.W.2, the scribe is of no use to the case of the
first defendant by virtue of his admissions in cross examination,
which was elaborately dealt with by the learned Additional
District Judge. The very written statement of the second
defendant is also vague. The second defendant did not explain
as to the amount allegedly borrowed by the first defendant by
allegedly mortgaging Ex.A.1 schedule property. He just filed
written statement and did not contest the suit. The second
defendant did not let in any evidence. The learned Additional
District Judge rightly believed the case of the plaintiff and
decreed the suit, as such, the Appeal Suit is liable to be
dismissed.
17) The admitted facts are that the plaintiff is the
mother of first defendant. PW.4 is one of the daughters of the
plaintiff. Plaintiff and her husband were blessed with the first
defendant and five daughters. The plaintiff was residing on the
alleged date of Ex.A-1 in the suit schedule property. These facts
are not in dispute.
18) Admittedly, the plaintiff sought to declare Ex.A.1 as
vitiated by fraud and misrepresentation. The plaintiff pleaded
certain circumstances in the plaint as regards the previous
animosity between her and the first defendant prior to Ex.A.1
and further on the pretext that her title document regarding
purchase of the property was to be computerized, the first
defendant and his wife obtained her signatures, thumb marks
and photos. So, according to his mother, the property under
Ex.A.1 was in her possession as on the date of Ex.A.1.
Subsequent to Ex.A.1 only when she was called upon by Sub
Inspector of Police, Vizianagaram on the complaint of the first
defendant, she came to know about Ex.A.1 and that obtained by
fraud and misrepresentation. P.W.1 in her chief examination
put forth the facts in tune with the pleadings and P.W.4 got filed
her chief examination affidavit in support of the case of the
plaintiff.
19) Now, it is appropriate to have a look into the cross
examination part of P.W.1 and D.W.1. During cross examination,
P.W.1 deposed that though she studied 5th class, but she does
not know Telugu. The first defendant is residing in the schedule
property and her samans are present in the said house and she
is coming from Madras now and then. She came to know about
the gift deed after lodging of report by the first defendant. She
did not issue any legal notice to the first defendant before filing
the suit. She did not file any complaint to the Sub-Registrar
about obtaining the gift deed by fraud. No suit was filed against
her daughter-in-law for recovery of Rs.12,00,000/- which was
credited into her account by obtaining signatures on a false
promise on the bank challanas. She denied that till the date of
death of her husband, she and her son, who is the first
defendant, used to reside in the schedule property. The first
defendant executed a settlement deed in her favour for the
ground floor in an apartment which is adjacent to the schedule
property. The flat was sold away by her in the year 2009 to K.
Anuradha for Rs.10,00,000/-. In 2009, she sold away vacant
site to P. Jyothi and P. Kishore for Rs.19,00,000/-. She is not
having any other property. She and first defendant never lived
together. She used to reside at Vizianagaram and the first
defendant used to reside at Visakhapatnam only. The amount of
her in the banks of Rs.15,00,000/- was transferred to the
account of her daughter-in-law. She came to know about the
same at a later time. She is alone residing in the house at
Vizianagaram. She used to reside at Madras and she used to
come to Vizianagaram now and then. The plaint schedule
property was constructed by her with her own amount. She
denied that out of the income of her husband only, the said
house property was purchased. She denied that she voluntarily
executed gift settlement deed in favour of her son and there is
no fraud or coercion.
20) Turning to the evidence of D.W.1, in cross
examination on crucial aspects, he deposed that he is residing at
Visakhapatnam since 1995. He is residing presently in a rented
house of B. Viswanadham. His Aadhaar card, pan card and
driving license all revealed that he is residing at Visakhapatnam.
He denied that his mother gave report against him and his
sisters also as there are differences. He denied that taking
advantage of the innocence and illiteracy of his mother, he and
his wife conspired and obtained Ex.A.1 gift deed by taking her to
the Sub-Registrar Office on the pretext that her signatures are
necessary for computerization of the document, dated
11.01.1983. Ex.B.1 is the copy of the report given by him on
09.03.2013 to Inspector of Police. As per Ex.B.1, his mother
gifted Rs.12,00,000/- to him, but in fact it was given to his wife
only. He does not know that Ex.X.1-cheque and Ex.X.2-voucher
were filled by his wife in her own handwriting. His mother has
not filled up blanks in Ex.X.1 and Ex.X.2. All the family
members shared the amount and purchased the property in the
year 1982. His mother, his father, his elder sister and he
contributed the amounts for the purchase of the property. He
has no document to show that he gave any amount to his
mother at any time. Plaintiff also filed another suit for recovery
of Rs.12,00,000/-. He denied that he is deposing false.
21) Though P.W.1 deposed that she did not file any suit
with regard to the recovery of Rs.12,00,000/- alleged to be
transferred under RTGS in favour of the wife of first defendant,
but after her evidence, she filed a suit, which is the subject
matter in A.S.No.787 of 2017.
22) As seen from Ex.A.1, the contents are that the
plaintiff purchased the vacant site in the year 1983 and after
that she constructed a house with her own sources and that the
first defendant is no other than her son. She out of love and
affection wanted to convey the property in favour of the first
defendant and accordingly conveyed the same and delivered
possession. As seen from Ex.A.1, contents are that plaintiff is
residing in the plaint schedule property. Further things are that
the first defendant is the resident of Visakhapatnam. As seen
from the evidence of P.W.3, the Sub Inspector of Police, coupled
with the receipts issued by the police for the complaints lodged
by the plaintiff apprehending some quarrels and disputes from
her children, it is clear that the plaintiff was not having good
relations with her children in the year 2008 and 2009. Apart
from this, there was also a complaint lodged by the first
defendant alleging something against the plaintiff as if the
plaintiff gifted Rs.12,00,000/- to him and also conveyed the
property but she is creating troubles, etc. Apart from this,
according to Ex.A.1, plaintiff is resident of Vizianagaram and
first defendant is resident of Visakhapatnam. Without there
being any basis in the pleadings, the first defendant got
suggested to P.W.1 that even during days of her husband, the
first defendant used to reside with her and she denied it. On the
other hand, during cross examination, D.W.1 admitted that his
Aadhaar card, pan card and driving license show that he is
resident of Visakhapatnam. Apart from this, according to P.W.1
she has no other house property. So, the contents in Ex.A.1 as
if the possession of the property was delivered to the first
defendant on the date of Ex.A.1 cannot stand to any reason. It
is interesting to note that even as on the date of evidence of
D.W.1, he has shown his residential address at Visakhapatnam.
He did not show his residential address as in the plaint schedule
property. Admissions of P.W.1 mean that her household
properties are there in the plaint schedule property and she
used to go to Chennai now and then and used to reside. Thus,
absolutely, no piece of paper is filed and no clarification is made
by the first defendant that how he came into possession of plaint
schedule property especially Ex.A.1 rules out delivery of
possession as on the date of Ex.A.1 by virtue of the admissions
made by D.W.1 in cross examination. Therefore, it is very
difficult to accept that Ex.A.1 was acted upon. Apart from this,
when there was bad blood flowing between the plaintiff and the
first defendant, there is no probability for the plaintiff to execute
Ex.A.1 voluntarily.
23) It is to be noted that though it is the evidence of
D.W.1 that he used to pay a sum of Rs.20,000/- every month to
the plaintiff towards her maintenance it is not at all
substantiated in any way.
24) Absolutely, the evidence on record means that the
plaintiff is the absolute owner of the plaint schedule property.
There is no pleading and proof by the first defendant that what
all the properties which were in possession and enjoyment of
the plaintiff or are in possession and enjoyment of the plaintiff
are the ancestral properties. In such circumstances, the attempt
made by D.W.1 that the plaint schedule property belonged to all
the members of the family cannot stand to any reason. It only
shows the conduct of the first defendant to claim the property of
the plaintiff by one way or other.
25) As seen from the admissions made by D.W.1, the
plaintiff did not fill up the contents of so-called Ex.X.1-cheque
and even did not fill up the contents of so-called RTGS
application. D.W.1 categorically admitted in cross examination
that the plaintiff did not fill up the contents but he deposed he
does not know whether the contents are in the handwriting of
the first defendant. Though Ex.X.1 and Ex.X.2 are the subject
matter pertaining to O.S.No.99 of 2014 filed by the plaintiff
against the first defendant and his wife i.e., daughter-in-law of
her which relates to A.S.No.787 of 2017, but the conduct of the
first defendant can be inferred by virtue of the above answers
spoken by him in cross examination relating to Ex.X.1 and
Ex.X.2. The evidence on record adduced by the plaintiff has
shown doubtful circumstances about Ex.A.1. The plaintiff
branded Ex.A.1 as vitiated by fraud and misrepresentation and
in support of the same, she relied upon various probabilities.
26) In fact, it is the first defendant who sought to
substantiate his rights over the schedule property under Ex.A.1,
which is the gift settlement deed. So, the duty is cast upon the
first defendant to prove its due execution. As seen from the
evidence of D.W.2, he is not at all an attestor of the document.
The contention of the appellant is that the evidence of D.W.2
supports his contention. It is to be noted that during cross
examination, D.W.2 deposed that his office is located outside
the premises of Sub-Registrar Office. After writing document,
he assigned his assistant along with the parties for registration.
He sent his assistant for registration. He did not have personal
knowledge as to what happened in the Sub-Registrar Office, as
he did not go there. He did not remember who attested Ex.A.1.
The second attestor Ramesh is his assistant. The above answers
spoken by D.W.2 mean that he was not at all present in the
Sub-Registrar Office at the time of registration and he has no
personal knowledge as to what happened. In my considered
view, the evidence of D.W.2 cannot be taken as evidence of an
attesting witness. It is interesting to note that one of the
attestors is the wife of the first defendant, who is not examined.
Another attestor is the assistant of D.W.2, who is not examined.
In my considered view, the evidence of D.W.2 is not at all useful
to say that the plaintiff executed Ex.A.1 voluntarily. Though the
statutory duty is upon the first defendant to examine at-least
one attesting witness to prove the due execution of Ex.A.1, but
the first defendant failed to do so.
27) To sum up to this extent, the evidence adduced by
the plaintiff in support of her case is found convincing. The
knowledge of the contents of Ex.A.1 cannot be attributed to
P.W.1 on account of various circumstances in her favour. The
first defendant miserably failed to prove the execution of Ex.A.1
by examining at-least one attesting witness. Ex.A.1 is a
compulsorily attestable document and the person who sought to
derive any title is bound to examine one attesting witness to
prove the due execution. In the light of the above, I am of the
considered view that the first defendant miserably failed to
prove the due execution of Ex.A.1. On the other hand, the
plaintiff could succeed by relying upon various circumstances
that there was no probability for her to execute Ex.A.1
voluntarily.
28) Coming to Section 126 of the Transfer of Property
Act, a donor cannot suspend or revoke the gift deed unless
there is condition. It is not a case where the plaintiff on her own
cancelled Ex.A.1. She duly approached the competent Court of
law to declare Ex.A.1 as vitiated fraud and misrepresentation.
Hence, the contentions canvassed before the learned Additional
District Judge that the plaintiff cannot cancel gift deed under
Section 126 of the Transfer of Property Act deserves no merits
and it is unsuited to the present situation.
29) Though the second defendant filed his written
statement, but from the contents thereof, it appears to be
evasive. It is the bounden duty of the second defendant to
plead as to how much amount it lent to the first defendant
under the so-called mortgage. On the other hand, the second
defendant branded the so-called mortgage as a nominal
document. The said contention is nothing but evasive. Neither
the first defendant nor the second defendant produced any proof
regarding the so-called mortgage amount. Except filing of
written statement, the second defendant did not contest by
stepping into witness box.
30) Having regard to the overall facts and
circumstances, I am of the considered view that the plaintiff
proved her entitlement before the learned Additional District
Judge to declare Ex.A.1 as vitiated by fraud and
misrepresentation and I am of the considered view the learned
Additional District Judge rightly looked into all the facts and
circumstances, probabilities in favour of the plaintiff and
improbabilities in favour of defendants and on thorough
analyzation of the evidence on record granted a decree of
cancellation of Ex.A.1 gift settlement deed as null and void with
exemplary costs.
31) Having regard to the above, I am of the considered
view that the impugned judgment on the file of the Special
Judge for Trial of Cases under SCs & STs (POA) Act-cum-
Additional District & Sessions Judge, Vizianagaram, is
sustainable under law and facts and I do not find any tenable
grounds to interfere with the well reasoned judgment of the
Additional District Judge.
Point No.3:
32) In the result, the Appeal Suit is dismissed with costs
confirming the judgment, dated 22.06.2016 in O.S.No.29 of
2013, on the file of Special Judge for Trial of Cases under SCs &
STs (POA) Act-cum-Additional District Judge, Vizianagaram.
Consequently, miscellaneous applications pending, if any,
shall stand closed.
________________________
JUSTICE A.V. RAVINDRA BABU
Dt. 07.10.2023.
PGR
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
Appeal Suit No.125 of 2017
Date: 07.10.2023
PGR
