Karnataka High Court
Sadiq Bashirahmad Hanchinmani vs Sri.Bashirahmad Khatalsab on 22 November, 2024
-1-
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 22ND DAY OF NOVEMBER 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 4095 OF 2013
BETWEEN:
SADIQ S/O. BASHIRAHMAD HANCHINMANI,
AGE: 33 YEARS,
OCC: BUSINESS,
R/O. 1ST FLOOR 'ANMOL MANZIL',
5TH CROSS, BEHIND SANGKAM HOTEL,
AZAD NAGAR, BELGAUM.
...APPELLANT
(BY SRI. SHAILESH MADIYAL, SENIOR COUNSEL FOR SRI. ROHIT
SINGH AND SRI. SAJID AHMED GOODWALA, ADVOCATES)
AND:
1. SRI. BASHIRAHMAD KHATALSAB
HANCHIMANI, AGE: MAJOR,
OCC: NIL, R/O.H.NO.3703/4,
DARBAR GALLI, BELGAUM.
2. SMT.MEENA MADHUKAR DONGARE,
ASHPAK
KASHIMSA
AGE: MAJOR, OCC: HOUSEWIFE,
MALAGALADINNI
R/O.C/O.R.N.DONGARE,
KADOLKAR GALLI, BELGAUM.
...RESPONDENTS
Location:
HIGH
COURT OF (BY SRI. A.P.MURARI, ADVOCATE FOR R2; APPEAL IS DISMISSED
KARNATAKA AGAINST R1)
THIS RFA FILED UNDER SEC.96 R/W. ORDER 41 RULE 1 OF
CPC., PRAYING TO SET ASIDE THE FINAL JUDGMENT AND DECREE
DATED 28.03.2013 PASSED BY II ADDITIONAL SENIOR CIVIL JUDGE,
BELGAUM AND MAY KINDLY PASS THE FOLLOWING RELIEF IN
FAVOUR OF THE APPELLANT:-
1. TO CALL FOR THE RECORDS OF THE COURT BELOW.
2. DECLARING THE APPELLANT IS THE OWNER IN
POSSESSION OF THE SUIT PROPERTY AS PER THE ORAL
-2-
GIFT DECLARED BY THE RESPONDENT NO.1 AND FURTHER
DECLARE THAT THE ALLEGED SALE DEED DATED
03.02.2009 EXECUTED BY THE RESPONDENT NO.1 IN
FAVOUR OF RESPONDENT NO.2 IS ILLEGAL, BOGUS, NULL
AND VOID AND IS NOT BINDING ON THE APPELLANT'S
INTEREST.
3. PERMANENT INJUNCTION, RESTRAINING THE
RESPONDENTS, THEIR AGENTS, HENCHMEN, SERVANTS OR
ANYBODY ACTING ON HIS BEHALF FROM DISTURBING THE
LAWFUL POSSESSION OF THE SUIT PROPERTY.
4. IN THE EVENT THE COURT FINDS THAT THE APPELLANT IS
NOT IN POSSESSION OF THE SUIT PROPERTY THEN
POSSESSION MAY KINDLY BE GRANTED TO THE
APPELLANT.
THIS APPEAL COMING HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 13.11.2024 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
The plaintiff is in first appeal, challenging the judgment
and decree, dismissing the suit for the relief of declaration
and injunction.
2. The suit was for declaration of the title based on
the oral gift of the year 2002, said to have been executed by
1st defendant, the plaintiff's father. The plaintiff also sought a
declaration that the registered sale deed dated 03.02.2009
executed by 1st defendant, in favour of 2nd defendant is null
and void and not binding on the plaintiff. Consequential relief
of injunction is also sought. In the alternative, the plaintiff
also sought possession.
3. Brief facts are as under:
1st defendant is the plaintiff's father. 2nd defendant
claims to have purchased the suit schedule property from 1st
defendant in the year 2009. The plaintiff claims that on
12.12.2002, his father-1st defendant orally gifted the suit
property in his favour and since then he has been in
possession of the property. In the year 2006, 1st defendant
attempted to alienate the suit property, despite the oral gift.
Since the prospective purchaser issued a paper publication
inviting objections from anyone claiming right over the
property, the plaintiff issued a reply notice cautioning the
general public not to purchase the property. The intended
purchaser noticing the claim of the plaintiff got the
agreement for sale cancelled.
4. The plaintiff also averred that he had reposed
confidence in his father and did not get his name entered in
the property records pursuant to the oral gift. Taking undue
advantage of the situation, the father has entered into a
sham sale transaction with second defendant through a
registered sale deed dated 03.02.2009.
5. The plaintiff contends that the father could not
have sold the property as he had already divested ownership
and possession over the property on 12.12.2002 when he
orally gifted the property to the plaintiff. The plaintiff would
also contend that oral gift is evidenced in a declaration dated
12.12.2002, on a stamp paper.
6. It is also pleaded that when the agreement for
sale executed by 1st defendant, in the year 2006 was
cancelled, the plaintiff repaid the advance consideration
amount paid to 1st defendant by the intended purchaser.
7. The plaintiff also pleaded that he had inducted a
tenant in the suit property.
8. The First defendant who is plaintiff's father and
alleged donor remained ex-parte.
9. Second defendant contested the suit denying the
oral gift. 2nd defendant asserted that 1st defendant was the
owner of the property till he executed the sale deed on
03.02.2009. The sale deed is duly registered for a valid
consideration. Pursuant to the sale, 2nd defendant has
acquired title as well as possession.
10. The Trial Court dismissed the suit by holding that
the alleged oral gift is not proved. The Trial Court also held
that a plea of tenancy raised by the plaintiff is not
established. The Trial Court disbelieved the alleged
declaration of oral gift. The Trial Court also held that the
plaintiff has failed to establish possession and without
possession there cannot be a valid gift.
11. Sri. Shailesh Madiyal, learned Senior counsel
appearing for the plaintiff/appellant would raise the following
contentions:
a) The declaration of oral gift dated 12.12.2002, in
writing, is not disputed by the father/defendant No.1.
Said declaration is made when there was no dispute.
The Trial Court could not have disbelieved Ex.P-21-the
declaration of gift dated 12.12.2002.
b) The plaintiff's reply notice dated 8.1.2006 through a
paper publication marked at Ex.P-5 at a time when
there was no dispute between the plaintiff and
defendant No.2 would demonstrate that the plaintiff
had acquired his title over the property under the oral
gift of December 2002. Month and year of oral gift
mentioned in the reply would be sufficient to hold that
gift took place. The Trial Court erred in disbelieving the
oral gift because the date of the oral gift is not
mentioned in the reply notice.
c) The plaintiff has produced documentary evidence to
prove repayment of Rs.2,00,000/- the consideration
amount, when the agreement was executed by the
father to a third party was cancelled in 2006. The
account from which the payment is made does belong
to the plaintiff though the account is standing in the
name of the proprietary concern, which incidentally is
the name of the plaintiff's father. Trial Court erred in
holding that payment by the plaintiff is not proved.
d) The Trial Court could not have disbelieved the
declaration of oral gift because the seal on the stamp
paper is dated 13.08.2002 and the stamp paper was
sold on 06.09.2002. The variation in the date of sale of
the stamp paper and the date mentioned against the
rubber stamp on the stamp paper has nothing to do
with the validity of the gift dated 12.12.2002.
e) The Trial Court could not have discarded the evidence
relating to the oral gift on the premise that it has
already given a finding that 1st defendant has not
divested ownership of the property. The Trial Court
should have considered the evidence in support of the
oral gift before forming any prior opinion on the title.
The Trial Court could not have overlooked the evidence
relating to the oral gift resting on its erroneous
assumption that the ownership of the property is not
divested by 1st defendant.
f) Ex.P-19 is the notice issued by the plaintiff to the
tenant to repay the arrears of rent. The fact that the
plaintiff has issued notice to the tenant occupying the
suit property would demonstrate that the plaintiff has
been exercising his right of ownership over the
property.
g) The plaintiff has also produced bank accounts to show
that the tenant has paid an advance security deposit
and has regularly paid the rent amount to the account
of the plaintiff. These documents prove tenancy,
possession and plaintiff's title.
h) To be a valid gift, it does not require actual physical
transfer of possession. Even if it is a constructive
possession, then also the gift is valid under the
Mohammedan law. The Trial Court committed an error
in not upholding the gift for want of proof of transfer of
actual possession.
i) The purchaser though filed a written statement, did not
personally lead evidence, and has chosen to lead
evidence through the Power of Attorney holder and the
evidence of the Power of Attorney holder is hearsay and
inadmissible.
12. Sri Murari, the learned Counsel appearing for
respondent No.2 raised the following contentions.
a) The alleged oral gift is unbelievable given the fact that
there was no entry in the property records based on
alleged oral gift, ever since the alleged gift of 2002.
b) The notice issued by the plaintiff as a reply to the
public notice cautioning the purchaser, does not
disclose the date of the alleged oral gift.
c) The alleged declaration of gift reduced into writing on
12.12.2002 is written on a stamp paper issued in the
month of August 2002, sold in September 2002 and
the said document marked at Ex.P.21, does not tally
with another alleged declaration of gift dated
12.12.2002, which is suppressed by the plaintiff and
produced by 2nd defendant and marked at Ex.D.4.
d) The endorsement on the agreement for sale cancelling
the agreement, to which, the plaintiff is also a
signatory, does not disclose anything about the alleged
oral gift.
e) The father/defendant No.1 did not contest the suit and
the suit was filed in collusion with defendant No.1.
f) The family members of the plaintiff particularly, the
mother should have been examined to prove the
alleged gift when it is stated by PW.2 that the mother
- 10 -
of the plaintiff was present when the alleged gift was
made.
g) The additional document produced by the plaintiff
pursuant to the directions issued by this Court, namely
the registered mortgage deed of 2003, executed by
defendant No.1 would clearly demonstrate that the
alleged oral gift was never made and defendant No.1
exercised his ownership over the property till he sold
the property to 2nd defendant in 2002.
h) The property records produced by defendant
No.2/respondent No.2 by way of an additional
document before this Court would disclose the fact
that defendant No.1 mortgaged the property and
repaid the loan.
13. This Court has considered the contentions raised
at the bar and perused the records. The following points
arise for consideration.
(a) Whether the parties to the proceeding have
made out a case for production of additional
documents.
- 11 -
(b) Whether the appellant has proved the oral
gift dated 12.12.2002?
14. Interlocutory applications:
(a) Both sides filed interim applications seeking
production of additional documents and submissions are
made on those applications as well.
(b) After considering the entire materials placed
before the Trial Court, this Court has also perused the
additional documents produced by both sides.
I.A.No.1/2014 is filed by the plaintiff seeking production of
additional documents. One of the documents is the police
complaint dated 27.01.2009 lodged by the plaintiff. Another
document is the copy of the objection filed by the plaintiff
before the Sub-Registrar cautioning the Sub-Registrar not to
register the documents in case presented by the plaintiff's
father. Another document is the copy of the property extract
for the year 1964 onwards. Another document is the
application dated 24.02.2009 submitted to the Surveyor,
Belgaum to enter the name of the plaintiff in the property
record. Another document is dated 03.03.2009, is the copy
of the objection filed to the change in mutation pursuant to
- 12 -
the registered sale deed executed by the father of the
plaintiff. Other two documents are the account statements in
Samarth Urban Credit Co-operative Society and HDFC Bank.
Another document is the complaint dated 27.03.2010 filed
before the Deputy Superintendent of Police, Belgaum which
is subsequent to the suit. Another document is the
endorsement given by the Police on 31.05.2010 pursuant to
the complaint dated 27.03.2010.
(c) Among these documents, except the property
record extract and bank statements the other documents do
not have any bearing on the merits of the matter. The
complaint to the police allegedly 3 days before the sale in
favour of 2nd defendant and objection before the sub-
registrar can have some relevancy. However they do not
come to the aid of the plaintiff to establish oral gift in the
light of the discussion below on the said oral gift. The
property record extract and Bank statements are produced
before the Trial Court as well. The property extracts and
bank statement produced cover a larger period as compared
to the documents produced before the Trial Court. Hence
- 13 -
those documents are considered and discussed below in this
judgment.
(d) As far as the photographs of the suit property,
are concerned, learned Senior counsel appearing for the
appellant during the course of hearing has submitted that
they will not rely on the said photographs.
(e) Thus, except the property extract, bank
statements, and the compliant before the sub-registrar,
other documents in I.A. No.1/2014 are not relevant and
necessary to adjudicate the controversy in this appeal.
Accordingly, I.A.No.1/2014 is allowed in part.
(f) The application at I.A.No.1/2016 is filed to
produce two letters issued by Kannadamma newspaper and
also the receipt. On going through the said application, this
Court does not find any reason to allow the said application
as the document sought to be produced are relating to the
public notice in Kannadamma newspaper. Those documents
have nothing to do with the merits of the case where the
Court is required to decide on the legality of the oral gift
pleaded by the plaintiff. Hence, those documents are not
- 14 -
relevant and necessary for adjudication of the case on
merits. Hence, I.A.No.1/2016 is dismissed.
(g) The application at I.A.No.6/2016 is filed for
production of additional documents and the appellant intends
to produce the records pertaining to the criminal case filed
by respondent No.1 against respondent No.2. Said document
is relating to a proceeding under Section 138 of Negotiable
Instruments Act. In the said proceeding, defendant No.1 has
stated that he has executed an oral gift in favour of his son-
plaintiff and it is further stated the cheque issued by
defendant No.2 for Rs.23 lakhs is dishonoured. Hence, a
criminal case was filed for offence under Section 138 of
Negotiable Instruments Act in C.C.No.1290/2009. It is
relevant to note that defendant No.1 has not challenged the
sale deed. The sale deed would reveal that the consideration
amount is Rs.35 lakhs is paid. Hence, the documents
relating to criminal case will have no bearing on the outcome
of the appeal. Even if agreed consideration amount is not
paid the remedy for the vendor is to sue for consideration
amount. Hence, the said documents are not relevant for
- 15 -
adjudication of the case, accordingly I.A.No.6/2016 is
dismissed.
(h) Learned counsel for respondent No.2 has filed
application at I.A.No.2/2024 seeking leave to produce
additional documents. One of the documents is the copy of
the property extract covering certain period not covered in
the property of the suit property produced before the Trial
Court. The contents of the said property extract pertaining to
the suit property are not disputed by the appellant. Since it
is a public record pertaining to the suit property, same is
taken on record. The other documents produced along with
the application are not necessary and relevant for
adjudication of the controversy relating to oral gift. Thus, the
application at I.A.No.2/2024 is allowed in-part.
(i) I.A.No.3/2024 is filed by the appellant seeking
leave of the Court to produce copy of the registered
mortgage deed and bank statement. Since this Court has
directed production of the copy of the mortgage deed, the
same is taken on record and considered in the main
judgment. Accordingly, I.A.No.3/2024 is disposed.
- 16 -
15. The core issue involved in this appeal is, 'whether
the oral gift of 12th December 2002 is established'. If so,
then consequences would follow and defendant No.1 cannot
alienate the property to defendant No.2 and defendant No.2
does not acquire the title over the suit property. The sale by
defendant No.1 in favour of defendant No.2 becomes invalid.
16. Learned Senior counsel appearing for the
plaintiff/appellant to prove the oral gift, emphasized on the
paper publication, as well as cancellation of the agreement
for sale, which took place in the year 2006. The main thrust
of the contention is that, in the year 2006, there was no
dispute between the plaintiff and defendant No.2. Defendant
No.2, who claims to have purchased the property in 2009,
was nowhere in the picture when the documents evidencing
oral gift came into existence. Thus, it is urged that the paper
publication marked at Ex. P5 and the cancellation agreement
would demonstrate the oral gift.
17. Indeed it is true that the paper publication of
2006, hints or indicates about the possibility of an oral gift in
December 2002 but does not conclusively prove the same.
The reason is, the publication or claim relating to oral gift is
- 17 -
not by the father-alleged donor. It is by the done. The
cancellation agreement of 2006 reveals that the intended
purchaser who wanted to purchase the property cancelled
the agreement for sale. However, what stares at the outset
is there is no change in the property records pursuant to the
alleged oral gift. More importantly, name of donee is not
entered in the property records even after an attempt by
defendant No.1 to sell the property 2006. Even seven years
after the alleged oral gift, there was no change in the
property records reflecting the name of the alleged donee as
the owner of the property. Now there is a registered sale
deed in favour of defendant No.2.
18. In the aforementioned scenario, the plaintiff who
seeks to dislodge a registered sale deed executed by his
father, based on the alleged oral gift said to have been
executed seven years before the sale to defendant No.2,
must adduce credible evidence to support his plea of oral
gift. The paper publication by the alleged done, hinting
indicating or suggesting an oral gift, and cancellation of
agreement for sale pursuant to the paper publication, by
themselves are not sufficient to dislodge other documentary
- 18 -
suggesting contrary to the plaintiff's claim of oral gift. This is
more so, in the context of a registered mortgaged deed in
the year 2003, executed by alleged donor-defendant No.1,
(Alleged oral gift is of 2002) wherein, defendant No.1 has
mortgaged the property as an owner of the property. More
importantly the plaint averments would disclose that the
plaintiff was aware of said mortgage, as he has made a claim
that he is the real borrower and father is just a name lender.
19. The registered mortgage deed of the year 2003,
was not produced before the Trial Court. This Court after
hearing the parties for some time, felt that the registered
mortgage deed may be a relevant piece of evidence and
directed the parties to produce the same. Later same is
produced by the appellant.
20. The mortgage deed would reveal
Sri.Bashirahamad Khatalsab Hanchinamani who is defendant
No.1 is described as borrower. And mortgage deed is
executed by said Bashirahamad Khatalsab Hanchinamani
along with two other persons namely Noor K.Hanchinamani
and Gous M.Hanchinamani as guarantors. The deed is dated
18.08.2003 and registered on the same date. Page No.4 of
- 19 -
the said mortgage deed contains a statement that borrower
is the owner and in actual physical possession and
enjoyment of the property bearing CTS No.1906/1A
measuring 102 square meters with building having Municipal
No.1906/1. From the contents of the mortgage deed it is
apparent that the loan amount is borrowed by defendant
No.1.
21. Though the plaintiff who is the son of defendant
No.1 contends that he has borrowed the loan and repaid the
loan, and the mortgage deed is executed by defendant No.1
to secure the loan availed by the plaintiff, the mortgage deed
does not say so. The contents of the registered mortgaged
deed would disclose that defendant No.1 as the owner of the
property has borrowed loan for himself and mortgaged the
suit property as a security for the loan.
22. Though the plaintiff claims that he borrowed and
repaid the loan, the said contention is contrary to Section 92
of the Indian Evidence Act, 1872. The plaintiff's case does
not fall under any of the exceptions to Section 92 of the
Indian Evidence Act, 1872 to accept the contention that the
- 20 -
mortgage deed executed by the plaintiff and 1st defendant
was just a name lender.
23. The contents of the mortgage deed would
demonstrate that 1st defendant exercised ownership over the
property in the year 2003, subsequent to the alleged oral gift
of 2002. It is relevant to note that in the plaint itself the
plaintiff has pleaded about the registered mortgage deed of
2002 where the plaintiff contends that he borrowed loan in
the name of defendant No.1 by mortgaging the said
property. This would clearly demonstrate that even in the
year 2003, the plaintiff himself allowed 1st defendant to
execute the mortgage deed by projecting 1st defendant as
the owner. Thus, the plaintiff is estopped from raising a
contrary plea.
24. It is relevant to note that when public notice was
issued by the prospective purchaser on 01.01.2006 to
purchase the property, the said purchaser in this notice
marked at Ex.P.4 has stated that the property is mortgaged
to a co-operative society. In addition, it is also stated in the
said notice that the vendor (defendant No.1) "has not
committed the schedule property to anyone else either on
- 21 -
lease, gift or in any other manner". To the said notice the
plaintiff replied by issuing a reply in the form of another
public notice dated 08.01.2006 marked at Ex.P.5. Said reply
notice though quite elaborate and contains many details, and
is issued in the name of an advocate, it does not disclose the
date of declaration of oral gift.
25. It is further relevant to note though the intended
transaction covered under the public notice dated
01.01.2006 was cancelled, and the plaintiff is a signatory to
the said cancellation agreement which is endorsed on the
agreement for sale between the said intended purchaser and
1st defendant, the recital canceling the agreement does not
refer to any oral gift, though the plaintiff is a signatory to the
said cancellation deed. The inference coming from the public
notice at Ex. P5 or cancellation agreement is not good
enough to dislodge the inference from the mortgage deed
which is registered and the said document is undisputed.
26. It is indeed true that the month and the year of
the oral gift have been mentioned in the reply notice marked
at Ex.P.5. However, the date of oral gift is not mentioned. In
certain circumstances, omission to mention the date, may
- 22 -
not by itself lead to the conclusion that the transaction
namely the gift has not taken place. However, given the
other surrounding facts and circumstances of the case, this
aspect assumes importance.
Those circumstances are:
(a) There is a clear overwriting of the name of the
purchaser on the stamp paper and that too in a
different ink.
(b) Though Ex.P.21, the alleged declaration of gift
dated 12.12.2002 is said to have been executed on
the said date, the stamp paper was issued in
August 2002. It is not the plaintiff's case that the
stamp paper was procured 3-4 months before the
alleged oral gift dated 12.12.2002 and his father
procured the stamp paper to make a declaration of
oral gift in writing.
(c) One more document allegedly declaration of oral
gift is executed on a stamp paper dated
12.12.2002. Said declaration is suppressed in the
plaint. Second defendant has produced it at Ex D-4.
- 23 -
Said document though allegedly executed on
12.12.2002, recites about the charge over the
property created in 2003.
(d) If compared with the ink on the remaining contents
of the stamp vendor's endorsement, the difference
in the ink is apparent, suggesting overwriting the
name of the stamp paper purchaser-defendant
No.1, on the name of some other parson-the
original purchaser of the stamp paper.
27. It is not the case of the plaintiff that oral gift was
contemplated in August 2002 and stamp paper was
purchased in August 2002, and was executed in December
2002. In this background, the date of purchase of stamp
paper in August 2002 with the overwritten name of
defendant No.1-purchaser, on the name of another person,
probably the first purchaser of the stamp paper leads to a
suspension about the authenticity of Ex.P-21.
28. The plaintiff has suppressed the alleged
declaration dated 12.12.2002. Said declaration is produced
by defendant No.2 and marked at Ex.D.4. It is the certified
- 24 -
copy of the alleged declaration relating to the oral gift and is
issued by ADLR, Belagavi. The said declaration is on a stamp
paper dated 12.12.2002 and the stamp paper appears to
have been purchased in the name of defendant No.1.
However, the recital in the said declaration of gift (as fairly
admitted by learned senior counsel appearing for the
plaintiff/appellant) would also disclose about the existence of
a charge over the property. The records would disclose that
the charge was created in the year 2003 after the execution
of the alleged gift deed. However, said charge created in
2003, is mentioned in the declaration of gift dated
12.12.2002. Thus, Ex.D.4 casts suspicion about its
authenticity. Indeed, Ex.D.4 is not produced by the plaintiff.
However, the said document is not disputed when it was
tendered in evidence by defendant No.2. Thus, the fact that
the declaration of oral gift dated 12.12.2002 in Ex-D4,
contains a recital about the charge over the property which
was created in 2003, inevitably points to the conclusion that
the said document is antedated.
29. The Trial Court doubted the authenticity of oral
declaration of gift on the premise that there was no
- 25 -
reference to the alleged declaration of oral gift in writing in
the reply notice. Though the plaintiff went to the extent of
issuing public notice when he learnt that his father had
proposed to alienate the property, which according to the
plaintiff was already gifted to him four years before the
father attempted to sell the property, did not choose to get
his name entered in the property records, even after the
cancellation of agreement for sale. The plaintiff is a signatory
to the transaction canceling the agreement for sale by
defendant No.1 and the prospective purchaser. However in
the said cancellation agreement, absolutely no reference is
made to the alleged oral gift in favour of the plaintiff.
30. The omission on the part of the plaintiff to take
steps to enter his name in the property records, immediately
after the gift or at least after the father attempted to
alienate the property in the year 2006, would lead to the
suspicion that such a gift deed was executed.
31. Overall appreciation of records and oral evidence,
on the preponderance of probability suggests the creation of
ante-dated declaration of oral gift. The preponderance of
probability also suggests that the ante-dated declarations of
- 26 -
oral gifts are created to suit the statement made in the paper
publication to dissuade the purchaser from going ahead with
the sale in 2006.
32. The very averments in the plaint and evidence on
record clearly demonstrate that the plaintiff was aware that
his father mortgaged the property in the year 2003 claiming
himself as the owner of the property. Even if the plaintiff
contends that he was the real borrower and he repaid the
amount, nothing prevented the plaintiff from joining the
execution of the mortgage deed by the father by making a
clear recital in the mortgage deed that he is the owner in
terms of oral gift and father is joining the mortgage deed as
a consenting party to facilitate the registration of the
mortgage deed.
33. Though it is urged that the plaintiff has repaid the
consideration amount received by the father when the
agreement for sale was cancelled in 2006, and the plaintiff
has received the rental income from the tenant, this Court
cannot accept the ownership of the plaintiff based on the
evidence relating to repayment of advance consideration
amount by the plaintiff and receipt of rental income from a
- 27 -
tenant, who according to the plaintiff was inducted as a
tenant by the plaintiff.
34. Assuming that the plaintiff has repaid the
consideration amount to the party who cancelled the
agreement with his father, said payment does not confer the
title over the property and said payment does not
demonstrate oral gift, in the light of other documentary
evidence and circumstances discussed above. The act of the
son repaying the consideration amount to the party, who had
entered into an agreement for sale with the father which
eventually was cancelled, cannot lead to the inference that
payment is made in exercise of right of ownership pursuant
to an oral gift which is seriously disputed. It can also be a
good gesture on the part of the son or probably the son
wanted the property to be retained for his benefit hoping
that it would one day come to him from his father.
35. Likewise, payment of a certain amount to the
account of the plaintiff by a person, who claims to be a
tenant under the plaintiff in respect of the suit property,
cannot lead to a conclusion that the plaintiff has inducted
said person as a tenant. The lease deed with the tenant was
- 28 -
not produced before the trial Court. An attempt is made
before this Court to produce the lease deed. The same is not
read in evidence as the lease deed is unregistered and is not
duly stamped.
36. Though it is urged that a notice was issued to the
tenant by the plaintiff through his advocate to recover the
arrears of rent, it is noticed that said notice was not sent to
the address where the suit property is located. It is allegedly
sent to the residential address of the alleged tenant.
37. Moreover, given the fact that the property was
sold in the year 2009 by defendant No.1 and alleged
payment of rent and security deposit is before 2009, even
assuming that a person was inducted into the property as a
tenant, such person can be considered as a tenant of
defendant No.1. Merely because the alleged tenant made
payment of rent and security deposit to the account of the
plaintiff, it cannot be said that plaintiff was the owner in
terms of the oral gift given the fact that defendant No.1 is
the father of the plaintiff. The payment of rent, if any, paid
to the account of the plaintiff cannot be interpreted to say
that the plaintiff was the owner on account of oral gift
- 29 -
particularly in the light of the discussion on the registered
mortgage and dubious declaration of oral gift on a stamp
paper. Such payment of rent if any can also be on account of
some internal arrangement between the father and the son,
which cannot be ruled out. The father-defendant No.1
remained ex-parte. Though there is no plea that plaintiff and
defendant No.1 have colluded, that appears to be the case,
from the facts and circumstances already discussed above.
38. Sri.Sailesh Madihal, the learned Senior counsel
also contended that the trial Court appears to have not
attached weight to the oral evidence relating to the oral gift
and the declaration of oral gift, by observing that the
ownership of defendant No.1 is not divested. Though the
approach of the Trial Court appears to be erroneous, even
on re appreciation of both oral and documentary evidence,
the conclusion of the Trial Court, on the validity of oral gift
cannot be termed as erroneous.
39. The plaintiff examined a witness, who is said to
be the witness to the oral gift of the year 2002. However
property records did not reflect such a gift. On the other
hand they indicate that defendant No.1 was the owner even
- 30 -
after the year 2002. Plaintiff himself was aware that
defendant No.1 executed a mortgage deed in 2003. Since
the plaintiff contends that the he is the real owner and
borrower and defendant No.1 was just a name lender, then
he should have examined his father to prove the contention.
Assuming that such a transaction has taken place, by
allowing name of the father to continue in the property
records, by allowing him to mortgage the property by
executing a registered mortgage deed as a owner, the
plaintiff is estopped from taking a contrary stand especially
when a third party right is created. Thus, the plaintiff cannot
question the sale deed executed by defendant No.1 in favour
of defendant No.2, when the property records and
encumbrance certificate did not show any iota of evidence
that the plaintiff is the owner of the property. By relying on
the oral evidence, reply notice and cancellation agreement,
and some payment in to the account of plaintiff by alleged
tenant, it cannot be said that an oral gift is proved. The
evidence on record already discussed above would suggest
that the plea of oral gift is untenable and declaration of oral
gift is concocted. Hence even on re appreciation of evidnce
- 31 -
relating to oral gift, this Court does not find any valid
reasons to uphold the claim based on oral gift.
40. It is also relevant to note that defendant No.2
purchased the property under a registered sale deed.
Defendant No.1 has not questioned the said sale deed.
Though the plaintiff contends that the sale deed is bogus and
sham, there is no evidence to support such a claim.
Defendant No.2 could not have noticed the alleged oral gift
of 2002 when no property records were standing in the name
of the plaintiff based on the alleged oral gift. In such a
scenario the person pleading oral gift, seven years after the
alleged oral gift and after the sale transaction, should come
out with credible evidence. The evidence which by long
drawn reasoning, which may tentatively indicate that the
alleged oral gift was made, is not sufficient to uphold the oral
gift when the third party rights are created under a
registered deed for valuable consideration.
41. Though it is urged that defendant No.2 did not
step into the witness box and he was examined through the
power of attorney holder, what is required to be noticed is
that entire case revolves around the proof of alleged oral gift
- 32 -
of 2002 and defendant No.2 has purchased the property in
2009. And to disprove the oral gift defendant No.1 need not
personally lead evidence. The entire burden is on the
plaintiff. In the facts of this case, the power of attorney
holder is competent to lead evidence. The Dw1 has produced
the public records and the alleged declaration of gift made by
the defendant No.1 (Ex-D4), to disprove the plaintiff's claim.
42. For the aforementioned reasons, the appeal fails.
Accordingly dismissed.
43. The interlocutory applications seeking production
of additional evidence are disposed of as indicated above and
other applications are not connected with the merits of the
appeal are disposed of by separate order.
44. No order as to cost.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
RKM/AM
...
