Karnataka High Court
Madan Rao S/O M Tuljaram Ors vs Smt. Yenkabai W/O Late Hanumantha Rao ... on 27 November, 2023
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RSA No. 7287 of 2011
C/W RSA No. 7412 of 2011
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO.7287 OF 2011
(CANCL. OF GIFT DEED)
C/W
REGULAR SECOND APPEAL NO. 7412 OF 2011
(CANCL. & POSSN.)
IN RSA NO.7287/2011:
BETWEEN:
1. MADAN RAO S/O M TULJARAM
AGE: 62 YEARS, OCC: MANAGER SBH
SINCE DECEASED APPELLANT Nos.2 AND 3 ARE
TREATED AS HIS LRs
2. AMARNATH S/O MADAN RAO
AGE: 43 YEARS, OCC: BUSINESS
R/O H.NO.1-11-126,
Digitally signed
by SWETA NIJALINGAPPA COLONY,
KULKARNI
Location: HIGH
RAICHUR-584101.
COURT OF
KARNATAKA
3. LAXMIKANT S/O MADAN RAO
AGE: 40 YEARS, OCC: NIL
R/O H.NO.1-11-126,
NIJALINGAPPA COLONY,
RAICHUR-584101.
...APPELLANTS
(BY SRI SHARANABASAPPA M. PATIL, ADV. FOR APPELLANT
2 AND 3; V/O DATED 26.09.2022 APPELLANT 2 & 3 ARE
TREATED AS LR'S OF DECEASED APPELLANT NO.1)
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RSA No. 7287 of 2011
C/W RSA No. 7412 of 2011
AND:
1. SMT. YENKUBAI
W/O LATE HANUMANTHA RAO
SINCE DECEASED THROUGH HER LR'S.
1a) SMT. SHANTHA BAI W/O RAGHUNATH
AGE: 45 YEARS, OCC: HOUSEHOLD
1b) KUMARI MANJULA
D/O LATE HANUMANTHA RAO
AGE: 37 YEARS, OCC: HOUSEHOLD
BOTH R/O: H.NO.11-2-39, BRESTWARPET,
RAICHUR-584101.
2. THE MANAGER
APCO FABRIC HANDLOOM, SHOP NO.11-5-10,
BRESTAWARPET, HARIHAR ROAD,
RAICHUR-584101.
3. SMT. SUMITRA BAI W/O GARUDA RAO
AGE: 40 YEARS, OCC: HOUSEHOLD,
R/O: SKD COLONY, 5TH ROAD 21/28/1,
POST: ADONI (AP)-410004.
4. SMT. KASTURI BAI W/O MADA RAO
AGE: MAJOR, OCC: HOUSEHOLD,
R/O 1-11-126, NIJALINGAPPA COLONY,
RAICHUR-584101.
5. SMT. PADMAVATHI BAI
W/O SHESHAGIRI RAO
AGE: 48 YEARS, OCC: HOUSEHOLD,
FLAT NO.102, JANA PRIYA PARADISE,
ASHOK NAGAR,
OFF., HEMAYATH NAGAR
HYDERABAD-410004.
6. SMT. NARMADA
W/O RAMACHANDRA RAO
AGE: MAJOR, OCC: HOUSEHOLD
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RSA No. 7287 of 2011
C/W RSA No. 7412 of 2011
R/O: SRI TULJA NILYA,
H.NO.2/2/4/10 HRB LAYOUT,
OPP. MAHILA SAMJA
RAICHUR-584101.
...RESPONDENTS
(BY SRI MAHANTESH PATIL, ADV. FOR R1(a) & (b);
V/O DATED 08.08.2016 NOTICE TO R2 IS HELD SUFFICIENT;
R3, R4 AND R6 ARE SERVED AND UN-REPRESENTED;
V/O DATED 12.07.2016 NOTICE TO R5 IS DISPENSED WITH)
THIS REGULAR SECOND APPEAL IS FILED U/S 100 OF
CPC, PRYING TO ALLOW REGULAR SECOND APPEAL AND TO
SET ASIDE THE JUDGMENT AND DECREE DATED: 20.07.2011,
PASSED BY THE LEARNED PRESIDING OFFICER, FAST TRACK
COURT NO.1, RAICHUR, IN R.A.NO.1/2006, ALLOWING THE
APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE
DATED: 17.12.2005, PASSED BY THE LEARNED ADDL. CIVIL
JUDGE(SR.DN.) RAICHUR, CONSEQUENTLY RESTORE THE
JUDGMENT AND DECREE DATED 17.12.2005 PASSED IN
O.S.NO.207/2000 BY THE LEARNED TRIAL COURT.
IN RSA NO.7412/2011:
BETWEEN:
1. SMT. YENKUBAI W/O LATE HANUMANTHA RAO
SINCE DEAD BY HIS LR'S
1(a) SMT. SHANTHA BAI /WO RAGHUNATH
AGE: 43 YEARS, OCC: HOUSEHOLD
1(b) MANJULA W/O LINGANNA KUMAR
D/O LATE HANUMANTH RAO
AGE: 35 YEARS, OCC: HOUSEHOLD,
BOTH ARE R/O H.NO.11-2-39, BRESTWARPET,
RAICHUR-584101.
...APPELLANTS
(BY SRI MAHANTESH PATIL, ADVOCATE)
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RSA No. 7287 of 2011
C/W RSA No. 7412 of 2011
AND:
1. MADAN RAO S/O M. TULJARAM
SINCE DECEASED R2, R3 AND R6 ARE TREATED AS
HIS LRs.
2. AMARANATH S/O MADAN RAO
AGE: 43 YEARS, OCC: BUSINESS
R/O H.NO.1-11-126,
NIJALINGAPPA COLONY,
RAICHUR-584101.
3. LAXMIKANT S/O MADAN RAO
AGE: 40 YEARS, OCC: NIL
R/O H.NO.1-11-126,
NIJALINGAPPA COLONY,
RAICHUR-584101.
4. THE MANAGER
APPCO FABRIC HANDLOOM, SHOP NO.11-5-10,
BRESTAWARPET, HARIHAR ROAD,
RAICHUR-584101.
5. SMT. SUMITRA BAI W/O GARUDA RAO
AGE: MAJOR,
R/O: SKD COLONY, 5TH ROAD 21/28/1,
POST: ADONI (ANDRA PRADESH)-410004.
6. SMT. KASTURI BAI W/O MADA RAO
AGE: MAJOR, OCC: HOUSEHOLD,
R/O 1-11-126, NIJALINGAPPA COLONY,
RAICHUR-584101.
7. SMT. PADMAVATHI BAI
W/O SHESHAGIRI RAO
FLAT NO.102, JANA PRIYA PARADISE,
ASHOK NAGAR,
OFF., HEMAYATH NAGAR
HYDERABAD-410004.
8. SMT. NARMADA
W/O RAMACHNADRA RAO
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RSA No. 7287 of 2011
C/W RSA No. 7412 of 2011
AGE: MAJOR, OCC: HOUSEHOLD
R/O: SRI TULJA NILAYA,
H.NO.2/2/4/10 HRB LAYOUT,
OPP. MAHILA SAMJA
RAICHUR-584101.
...RESPONDENTS
(BY SRI SHARANABASAPPA M. PATIL, ADV. FOR R2 & R3;
V/O DATED 26.09.2022 R2, R3 & R6 ARE TREATED AS LR'S
OF DECEASED R1;
V/O DATED 08.08.2016 NOTICE TO R4 IS HELD SUFFICIENT;
R4, R5, R8 SERVED UN-REPRESENTED
V/O DATED 12.07.2016 IN RSA 7287/11 NOTICE TO R7 IS
DISPENSED WITH;
V/O DATED 17.11.2023 NOTICE TO R6 IS HELD SUFFICIENT)
THIS REGULAR SECOND APPEAL IS FILED U/S 100 OF
CPC, PRYING TO SET ASIDE THE IMPUGNED JUDGMENT AND
DECREE DATED 20.07.2011 IN R.A.NO.1/2006 ON THE FILE OF
THE FAST TRACK COURT-I, AT RAICHUR, IN SO FAR AS
DELIVERY OF POSSESSION OF SUIT PROPERTY AND MESNE
PROFITS IN FAVOUR OF RESP. NO.5 TO 8.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
COMMON JUDGMENT
Though the appeals are listed for admission, with the
consent of learned counsel for both the parties, they are taken
up for final disposal.
The appellants in RSA No.7287/2011 were defendant
Nos.1 to 3 in O.S.No.207/2000 on the file of the learned
Additional Civil Judge (Sr.Dn.), Raichur (hereinafter referred to
as the 'Trial Court' for brevity) and are impugning the judgment
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C/W RSA No. 7412 of 2011
and decree dated 20.07.2011 passed in R.A.No.1/2006 on the
file of the Fast Track Court-I at Raichur (hereinafter referred to
as the 'First Appellate Court' for brevity) which allowed the
appeal preferred by the plaintiff and set aside the impugned
judgment and decree dated 17.12.2005 passed by the Trial
Court and decreed the suit of the plaintiff declaring that Ex.P-1-
registered gift deed dated 23.10.1981 is a void document and
ordered for cancellation of the same and holding that all the
legal representatives of deceased plaintiff arrayed as appellants
and also respondent Nos.5 to 8 are entitled for possession of
the suit property.
2. RSA No.7412/2011 is preferred by the appellants in
regular appeal who are the two daughters of deceased plaintiff
before the Trial Court, challenging the impugned judgment and
decree passed by the First Appellate Court to the effect that all
the legal representatives of deceased Yenkubai are entitled for
possession of the suit property.
3. For the sake of convenience, parties are referred to
as per their status and rank before the Trial Court.
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RSA No. 7287 of 2011
C/W RSA No. 7412 of 2011
4. Brief facts of the case are that the plaintiff -
Yenkubai filed the suit O.S.No.207/2000 against defendant
Nos.1 to 4 for cancellation of the gift deed dated 23.10.1981
and for possession of the suit property bearing No.11-5-10
situated at Brestwarpet, Harihar Road, Raichur (hereinafter
referred to as the 'suit property' for brevity) from defendant
Nos.2 and 3.
5. It is the contention of the plaintiff that she is an
illiterate widow having two unmarried daughters by name
Shanta Bai and Manjula, amongst other daughters. She is not
having sons or any male members in her family. Defendant
No.1 is her son-in-law being the husband of her daughter
Kasturibai. Defendant Nos.2 and 3 are the children of
defendant No.1 through said Kasturibai. It is contended that
defendant No.4 is the tenant under the plaintiff in respect of
the suit property and is running Appco Fabric Handloom shop in
the same. Since the plaintiff was having two unmarried
daughters referred to above, she was desirous of gifting the
suit property in their favour by executing the gift deed to
secure their future so that they can earn some amount as rent.
When she expressed this desire with defendant No.1, he
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RSA No. 7287 of 2011
C/W RSA No. 7412 of 2011
arranged for executing the registered gift deed, took the
plaintiff to the registration office and got her thumb
impressions and handed over the gift deed dated 23.10.1981
by giving an impression that under the said document she had
gifted the suit property in favour of her two unmarried
daughters - Shantabai and Manjula. Plaintiff continued to be in
possession of the gift deed and was receiving the rent from
defendant No.4 on the basis of the lease deeds executed by the
tenant. She was paying the tax for the suit property and also
paying the water charges.
6. It is contended that defendant No.1 played fraud on
the plaintiff, misled her and got the registered gift deed dated
23.10.1981 in the names of his minor sons who are arrayed as
defendant Nos.2 and 3. Defendant No.1 took undue advantage
of the illiteracy and innocence of the plaintiff and committed
fraud. She was kept in dark about the contents of the gift deed
but she was under the impression that she had executed the
gift deed in favour of her two unmarried daughters referred to
above.
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RSA No. 7287 of 2011
C/W RSA No. 7412 of 2011
7. It is contended that during May, 2000 she had not
received the rent from defendant No.4 and she came to know
about the gift deed that was got executed in favour of
defendant Nos.2 and 3 by defendant No.1. Then she came to
know about the contents of the document which was in her
possession. Therefore, filed the suit seeking cancellation of the
gift deed and for possession of the suit property.
8. Defendant Nos.1 and 2 have filed their written
statement denying the contentions taken by the plaintiff. It is
contended that the suit of the plaintiff for cancellation of the
gift deed is barred by limitation since it was executed on
23.10.1981 and the suit was came to be filed in the year 2000.
The suit is liable to be dismissed.
9. It is also contended that the plaintiff was never in
possession of the suit property since 23.10.1981. Even the suit
for possession is also barred by limitation.
10. It is further contended that the plaintiff is having six
daughters and her two eldest daughters namely Sumitra Bai
and Kasturibai are already married and settled in their life.
Kasturibai is the wife of defendant No.1. They have begotten
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C/W RSA No. 7412 of 2011
defendant Nos.2 and 3 in the marriage and plaintiff expressed
her willingness to gift away the suit property in favour of her
grand sons. It is also contended that defendant No.1 was not
having cordial relationship with the plaintiff and she was having
hostile attitude. Therefore, she came up with this contention
seeking cancellation of the gift deed without any basis. The
revenue records stood in the name of defendant Nos.2 and 3
on the basis of the gift deed and they exercised their right as
owners over the suit property. It was defendant Nos.2 and 3
who are paying the property tax and they have let out the
property in favour of defendant No.4 by getting the lease deed
executed in the year 1995. Therefore, defendant Nos.2 and 3
are in possession and enjoyment of the property as owners
under the registered gift deed.
11. It is contended that defendant No.1 was never
present with the plaintiff at the time of the registration of the
gift deed and he has not played any part either in execution of
the gift deed or in registration of the same. Therefore, there
was no question of playing fraud or misrepresentation as
contended. Hence, it is stated that the plaintiff has not made
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RSA No. 7287 of 2011
C/W RSA No. 7412 of 2011
out any ground to seek any relief and prayed for dismissal of
the suit.
12. Defendant No.3 has filed the memo adopting the
written statement filed by defendant Nos.1 and 2.
13. On the basis of these pleadings, the following issues
were came to be framed:
"ISSUES
1) Whether plaintiff proves that she is the owner of the suit
schedule property and defendants No.4 is her tenant?
2) Whether plaintiff further proves that the defendant No.1
has committed fraud on plaintiff and executed the false
gift deed in favour of defendants 2 and 3?
3) Whether plaintiff is entitled to a decree for cancellation of
the registered gift deed dated 23.10.1981?
4) Whether plaintiff is entitled to the possession of the suit
schedule property as prayed for?
5) Whether defendants prove that the suit is barred by
limitation?
6) Whether defendant prove that the plaintiff had gifted the
suit schedule property in favour of defendants 2 and 3
with her own free will?
7) What order or decree the parties are entitled to?
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RSA No. 7287 of 2011
C/W RSA No. 7412 of 2011
ADDITIONAL ISSUES
1) Whether the Court fee paid by plaintiff is property and
correct?
2) Whether the defendants prove that the market value of
the suit property is Rs.10,00,000/-?"
14. The plaintiff examined herself as PW-1 and got
marked Exs.P-1 to P-28 in support of her contentions.
Defendant No.1 got examined himself as DW-1 and got
examined DW-2 and got marked Exs.D-1 to D-5 in support of
his contention. The Trial Court, after taking into consideration
all these materials on record, answered issue Nos.1 to 4 and
additional issue No.2 in the negative, issue Nos.5, 6 and
additional issue No.1 in the affirmative and accordingly the suit
of the plaintiff was came to be dismissed.
15. Being aggrieved by the same, the plaintiff has
preferred R.A.No.1/2006 impugning the judgment and decree
passed by the Trial Court. During the pendency of the appeal,
the original plaintiff died and her daughters Shanta Bai and
Manjula got impleaded as appellants. Other daughters of
Yenkubai were impleaded as respondent Nos.5 to 8. The First
Appellate Court, on re-appreciation of the materials on record,
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RSA No. 7287 of 2011
C/W RSA No. 7412 of 2011
allowed the appeal, set aside the judgment and decree dated
17.12.2005 passed in O.S.No.207/2000 and consequently suit
of the plaintiff was decreed. Ex.P-1 - the registered gift deed
dated 23.10.1981 is held to be void document and therefore
ordered to be cancelled. It is held that the legal
representatives of deceased plaintiff who are the appellants and
other legal representatives who are arrayed as respondent
Nos.5 to 8 are entitled for delivery of possession of the suit
property within two months from the date of order from
defendant/respondent Nos.2 and 3, with mesne profits from
May, 2000 till delivery of possession.
16. Being aggrieved by the same, defendant Nos.1 to 3
have preferred RSA No.7287/2011 and the appellants in
R.A.No.1/2006 i.e., Shanta Bai and Manjula have preferred RSA
No.7412/2011.
17. Heard Sri Sharanabasappa M. Patil, learned counsel
for the appellants in RSA No.7287/2011 who are respondent
Nos.2 and 3 in RSA No.7412/2011 and Sri Mahantesh Patil,
learned counsel for respondent Nos.1(a) and (b) in RSA
No.7287/2011 who are the appellants in RSA No.7412/2011.
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RSA No. 7287 of 2011
C/W RSA No. 7412 of 2011
Respondent Nos.2 to 4 and 6 in RSA No.7287/2011 who are
respondent Nos.4, 5, 6 and 8 in RSA No.7412/2011 are served
and remained absent. Notice to respondent No.5 in RSA
No.7287/2011 who is respondent No.7 in RSA No.7412/2011 is
dispensed with.
18. Learned counsel for the appellants - defendant
Nos.1 to 3 in RSA No.7287/2011 submits that the plaintiff filed
the suit for cancellation of registered gift deed. No reasonable
grounds are assigned to cancel the gift deed which was
executed by the plaintiff herself. The said gift deed is dated
23.10.1981. The suit was came to be filed during the year
2000. Therefore, the suit of the plaintiff is hopelessly barred by
limitation.
19. Learned counsel further submitted that since the
gift deed is a registered document, there is a presumption in its
favour. The appellants have examined one of the attesting
witnesses to the gift deed as DW-2. Plaintiff has not made any
such efforts. Under such circumstances, the suit of the plaintiff
should have been dismissed.
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RSA No. 7287 of 2011
C/W RSA No. 7412 of 2011
20. Learned counsel further submitted that during
cross-examination of the plaintiff as PW-1, she categorically
admitted the execution of the gift deed and registration of the
same which is as per Ex.P-1. She also admits her left hand
thumb impression found on the document. She goes to the
extent saying that she paid the fees for registration of the
document. Under such circumstances, the First Appellate Court
committed an error in decreeing the suit of the plaintiff.
Learned counsel further submitted that it was defendant Nos.2
and 3 who are paying the tax and other dues in respect of the
suit property and they were collecting the rent from the tenant.
Only out of love and affection the rent was being paid to the
plaintiff but it is not an acknowledgement of her right. If at all
plaintiff had executed the gift deed bequeathing the property in
favour of her unmarried daughters, there was no reason as to
why the plaintiff had paid the tax or collected the rent.
Therefore, the contention taken by the plaintiff is without any
basis. Exs.P-26 to P-28 are the lease deeds executed by
defendant No.4 in favour of defendant Nos.2 and 3. These
documents also support the contention of the defendants. The
Trial Court on proper appreciation of the materials on record
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RSA No. 7287 of 2011
C/W RSA No. 7412 of 2011
had dismissed the suit. But the First Appellate Court
committed an error in allowing the appeal decreeing the suit as
prayed for. Therefore, he would pray for allowing the appeal in
RSA No.7287/2011 in the interest of justice.
21. Per contra, learned counsel for the appellants in
RSA No.7412/2011 being the daughters of the original plaintiff,
opposing the appeal, submitted that the Trial Court had not
appreciated the materials on record in proper perspective and
dismissed the suit. The First Appellate Court on proper
appreciation of the materials, decreed the suit. Even though
the execution of the gift deed as per Ex.P-1 is admitted by the
plaintiff, she categorically stated that she is an illiterate lady,
she believed defendant No.1 who was the only male member
who was assisting her, as he is the son-in-law of the plaintiff.
Taking undue advantage of his position, defendant No.1
arranged for drafting the gift deed and instead of bequeathing
the property in favour of the appellants herein, got it
bequeathed in favour of his minor sons who are defendant
Nos.2 and 3. Under such circumstances, the First Appellate
Court rightly decreed the suit of the plaintiff and cancelled the
gift deed as vitiated by fraud and misrepresentation. The
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C/W RSA No. 7412 of 2011
materials on record discloses that the original gift deed
remained with the plaintiff and she was receiving the rent from
defendant No.4 after getting the lease deeds in her possession.
She was paying tax and produced the tax paid receipts and
receipts for having paid the water charges. Defendant No.1
managed to create an impression with the plaintiff that it was
she who was still the owner of the property. Only when the
rent that was to be paid in respect of the suit property was
denied during May, 2000, she got issued the legal notice to
which defendant No.4 issued the reply. It is then only she
came to know about the fraud played on her and filed the suit.
Defendant No.1 stepped into the witness box to contend that
he was never present before the registering authority. But
admittedly Ex.P-1 - the gift deed depicts his signature as he
accepted the gift on behalf of his minor sons - defendant Nos.2
and 3. Therefore, the contention taken by defendant No.1 is
falsified.
22. Learned counsel further submitted that DW-2 is one
of the attesting witnesses to the gift deed Ex.P-1. He
categorically states that he was not having any acquaintance
with the plaintiff nor he visited her house even on special
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C/W RSA No. 7412 of 2011
occasions and he was called by one Narsing Rao to attest the
document but not by the plaintiff. Witness also pleaded his
ignorance as to at whose instance the recitals in the gift deed
were written. In view of these facts and circumstances, the
First Appellate Court was right in decreeing the suit of the
plaintiff by allowing the appeal. There are no merits in the
contention taken by the appellants in RSA No.7287/2011 and
prays for dismissal of the same.
23. Learned counsel also submitted that RSA
No.7412/2011 is preferred by the appellants in R.A.No.1/2006.
The original plaintiff - Yenkubai died during the pendency of the
appeal before the First Appellate Court. Thereafter, these
appellants were impleaded as appellants. There is reference to
these appellants being the unmarried daughters of Yenkubai in
the plaint. Yenkubai the mother of the appellants categorically
expressed the willingness and intention to bequeath the
property only in favour of the appellants and not in favour of
any other person. Taking undue advantage of the illiteracy and
ignorance of Yenkubai, defendant No.1 managed to create the
gift deed in favour of his minor sons - defendant Nos.2 and 3.
Therefore, the intention of the donor - Yenkubai was very clear
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RSA No. 7287 of 2011
C/W RSA No. 7412 of 2011
that she wanted to secure the life of her unmarried daughters
who are the appellants herein. Under such circumstances, it is
the appellants who are entitled for the possession of the suit
property. The First Appellate Court, even though allowed the
appeal and decreed the suit of the plaintiff, held that all the
legal representations of deceased plaintiff are entitled for
delivery of possession of the suit property along with mesne
profits. Meaning thereby, even defendant/respondent Nos.5 to
8 who are the other daughters of Yenkubai are also held to be
entitled for possession of the property which was never claimed
by them. The intention of Yenkubai was made clear by her in
the plaint itself which was never disputed by any of her other
daughters. Under such circumstances, he prays for allowing
RSA No.7412/2011.
24. The substantial question of law that would arise for
consideration in RSA No.7412/2011 is as under:
"Whether the claim of the appellants herein for
possession of the suit property exclusively and to the
exclusion of defendants - respondent Nos.5 to 8
could be entertained in the absence of any document
that is executed by the original plaintiff late Smt.
Yenkubai, bequeathing the same in their favour?"
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C/W RSA No. 7412 of 2011
My answer to the above substantial question of law would
be in the 'Affirmative' for the following:
REASONS
25. It is the specific contention of the plaintiff -
Yenkubai that she is the absolute owner of the suit property
which is not in dispute. It is her further contention that she
was having six daughters and was not having any male issues.
It is also not in dispute. It is her contention that defendant
No.1 is the husband of her daughter Kasturibai and defendant
Nos.2 and 3 are their children, which is also admitted. It is
further admitted that Shanta Bai and Manjula are the
unmarried daughters of Yenkubai which is also not in dispute.
26. It is the contention of the plaintiff that she was
intending to gift away the suit property in favour of her
unmarried daughters i.e., Shanta Bai and Manjula to secure
their future life. She never intended to gift the property in
favour of defendant Nos.2 and 3 who are her grand children
through her daughter Kasturibai and defendant No.1.
Therefore, she filed the suit seeking cancellation of the gift
deed Ex.P-1 which is dated 23.10.1981. Plaintiff herself
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C/W RSA No. 7412 of 2011
stepped into the witness box and deposed as PW-1. She was
cross-examined at length by the contesting defendants i.e.,
defendant Nos.1 to 3. It is elicited during cross-examination
that she intended to execute the gift deed in favour of her
unmarried daughters. She herself was paying tax and other
dues in respect of the suit property. The lease deed was
executed in her favour by defendant No.4. To evidence this
fact, the plaintiff produced Ex.P-1 the original gift deed, Exs.P-4
to P-21 the tax paid receipts, Exs.P-22 to P-25 the receipts for
having paid the water charges and Exs.P-26 to P-28 the lease
deeds. All these documents are original documents. It is
pertinent to note that defendant Nos.1 to 3 have not produced
any such documents except the certified copy of the gift deed
as per Ex.D-1. There is absolutely no explanation by these
contesting defendants as to why the original gift deed remained
in possession of the plaintiff. There is also no explanation as to
how Ex.P-4 to P-28 even though standing in the names of
defendant Nos.2 and 3 were in possession of the plaintiff.
There is also no reasonable explanation as to why the monthly
rent in respect of the suit property was being paid to the
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RSA No. 7287 of 2011
C/W RSA No. 7412 of 2011
plaintiff even after defendant Nos.2 and 3 became the owners
by virtue of the registered gift deed.
27. It is the contention of the plaintiff that she never
intended to bequeath the property in favour of her grand
children defendant Nos.2 and 3. But her intention was to secure
the life of her unmarried daughters i.e., Shanta Bai and
Manjula. She further states that defendant No.1 who was the
only male support she was having, he being the son-in-law
played fraud on her and bequeathed the property in favour of
defendant Nos.2 and 3. Plaintiff expressed her willingness to
bequeath the property in favour of her unmarried daughters
more than once since from her pleading in the plaint. The
intention of the plaintiff to bequeath the property in favour of
her unmarried daughters to secure their future life is quite
reasonable and natural instinct for a widowed mother. There is
absolutely no reason as to why plaintiff should bequeath the
suit property in favour of her grand children, who were still
minors and who are having their parents to look after them.
The contention taken by the plaintiff that she was defrauded by
defendant No.1 is supported by many such circumstances
including the possession of the original gift deed and other
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RSA No. 7287 of 2011
C/W RSA No. 7412 of 2011
documents marked as Exs.P-4 to P-28. The contention of the
learned counsel for the defendants that out of love and
affection the plaintiff was collecting the rent cannot be
accepted.
28. Defendant No.1 stepped into the witness box and
deposed that he was never present in the Sub-registrar's office
when Ex.P-1 was executed by the plaintiff. But strangely the
signature of defendant No.1 finds a place as the acceptor of the
gift on behalf of his minor children. Now the question arises as
to why defendant No.1 has taken a false defence that he was
not present when Ex.P-1 was executed. There is also no
reason as to why the original gift deed remained with the
plaintiff.
29. DW-2 is one of the attesting witnesses to Ex.P-1. It
is pertinent to note that the witness was not acquainted to the
plaintiff. He states that he attested the document at the
instance of one Narsing Rao who is the other attesting witness
to the gift deed. He pleads his ignorance as to who gave
instructions for drafting the gift deed. He never met plaintiff
nor visited her house on any occasion. Meaning thereby, DW-2
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RSA No. 7287 of 2011
C/W RSA No. 7412 of 2011
is a stranger to the plaintiff. Why plaintiff has chosen such a
stranger as attesting witness to the gift deed is also not
explained. All these circumstances clinchingly support the
contention of the plaintiff with regard to the playing of fraud
and misrepresentation by defendant No.1 who was the
beneficiary under the gift deed as his children defendant Nos.2
and 3 were still minors at that time.
30. The documents including Ex.P-1 were left with the
plaintiff to keep the plaintiff in dark about the fraud and
misrepresentation played against her. It was only when the
rent that was being paid by defendant No.4 till April 2000 was
stopped being paid, she got issued the legal notice as per Ex.P-
2 and received the reply as per Ex.P-3 which resulted in filing of
the present suit. All these facts and circumstances
unmistakenly support the contention of the plaintiff and not the
defence taken by the contesting defendants. Fraud or
misrepresentation are the secret acts committed with guilty
mind to defraud and to deceive the other person. It vitiates
very foundation of the document, on proof of such fraud and
misrepresentation. We cannot expect the positive evidence to
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RSA No. 7287 of 2011
C/W RSA No. 7412 of 2011
prove the fraud or misrepresentation. We should gather it from
the circumstances that are available on record.
31. The First Appellate Court on proper appreciation of
the materials on record rightly allowed the appeal and decreed
the suit of the plaintiff. I do not find any irregularity in
decreeing the suit of the plaintiff as prayed for. No substantial
question of law would arise to be considered in RSA
No.7287/2011. Hence, the same is liable to be dismissed.
32. The plaintiff who filed the suit O.S.No.207/2000
was alive and she herself challenged the impugned judgment
and decree passed by the Trial Court dismissing the suit.
During the pendency of R.A.No.1/2006 before the First
Appellate Court the original plaintiff died. It is pertinent to note
that the appellants are none other than Shantai Bai and
Manjula who are referred to by the plaintiff in the plaint as her
unmarried daughters. It is only they got impleaded as the legal
representatives of the deceased plaintiff. The other daughters
of late Yenkubai were impleaded as respondent Nos.5 to 8.
They have not put forth any claim over the suit property and
they never denied the intention of their mother Yenkubai.
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RSA No. 7287 of 2011
C/W RSA No. 7412 of 2011
When Yenkubai during her lifetime made it very clear in the
plaint regarding her intention that she was desirous to gift the
suit property in favour of these two daughters and therefore
had executed the registered gift deed to secure their future
with monthly income is to be taken into consideration while
deciding the rights of the legal representatives of Yenkubai.
Under normal circumstances if Yenkubai dies, all her legal
representatives would have been entitled for equal share in the
suit property. But here is a case where Yenkubai in many
words expressed her desire to gift the suit property in favour of
her two daughters who remained unmarried. We should
consider the anxiety of a widowed mother in favour of her
unmarried daughters. It is not in dispute that other daughters
of Yenkubai are already married and settled in their life. Under
such circumstances, the last wish of Yenkubai, as expressed by
herself, both in the plaint and also deposed as PW-1 is to be
taken into consideration and it is to be respected. If the same
is taken into consideration, the suit property should belong only
to her two daughters Shanta Bai and Manjula and not to the
other daughters who are all married and settled in their life.
While deciding the rights of the parties, the Court cannot shut
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RSA No. 7287 of 2011
C/W RSA No. 7412 of 2011
its eyes to the hard realities of life. Simply because there was
no gift deed in favour of Shanta Bai and Manjula, their right
over the property cannot be denied inspite of the original
plaintiff expressing the same in many words. When it is proved
that Yenkubai executed the registered gift deed Ex.P-1 under
the impression that she is executing the gift deed bequeathing
the property in respect of the suit property in favour of her two
unmarried daughters, but for the fraud and misrepresentation
played by defendant No.1 the property would have been
donated in their favour, the same is to be accepted by this
Court to hold that it is only Shanta Bai and Manjula who are
entitled for possession of the suit property. The contention of
the plaintiff was never disputed by any of her other children
including Smt. Kasturibai wife of defendant No.1. Under such
circumstances, I find considerable force in the contention taken
by the appellants in RSA No.7412/2011.
33. The Trial Court has committed an error in
dismissing the suit of the plaintiff by assigning flimsy reasons.
The First Appellate Court, even though was right in allowing the
appeal and decreeing the suit of the plaintiff, committed an
error in holding that all the legal representatives of the original
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RSA No. 7287 of 2011
C/W RSA No. 7412 of 2011
plaintiff are entitled for delivery of possession. The reason
assigned by the First Appellate Court to form such an opinion is
not sound and tenable. Hence, I answer the above substantial
question of law in favour of the appellants in RSA
No.7412/2011 and proceed to pass the following:
ORDER
(i) RSA No.7287/2011 is dismissed with costs.
(ii) RSA No.7412/2011 is allowed with costs.
(iii) The impugned judgment and decree dated
20.07.2011 on the file of the Fast Track Court-I
at Raichur passed in R.A.No.1/2006 is modified
holding that it is only Shanta Bai and Manjula
(the appellants in RSA No.7412/2011) are
entitled for delivery of possession of suit
property and mesne profits as ordered in the
Regular Appeal and not the other legal
representatives of the original plaintiff.
(iv) Office is directed to draw the decree
accordingly.
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Registry to send back the Trial Court and First Appellate
Court records along with copies of this judgment and decree.
Sd/-
JUDGE
SWK
CT-VD
