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Karnataka High Court · body

2010 DIGILAW 503 (KAR)

B. C. Ravindra v. Deviramma

2010-04-07

V.JAGANNATHAN

body2010
Judgment :- (Regular First Appeal filed under Section 96 of the C.P.C. Against the judgment and decree dated 1.8.2006 in O.S. No.124/2004 on the file of the Addl. Civil Judge (Sr. Dn.), Srirangapatna, decreeing the suit for declaration and possession.) The defendants in the suit filed by the respondent-plaintiff are in appeal, aggrieved by the suit of the plaintiff for declaration and possession being decreed. The main grievance of the appellants-defendants in this appeal is that, without seeking the relief of cancellation of the gift deeds in question, the trial court could not have decreed the suit. 2. The facts which fall within the narrow compass are that, the plaintiff filed the suit for declaration and possession in respect of the suit properties which are described as 2 acres and 20 guntas of land in S.No. 1148. 25 guntas of land in S.No. 1223. and 0.30 guntas of land in S.No.54, all situated in Belagola Hobli, Srirangapatna Taluk, and it was the plaintiff’s case that she became the absolute owner of the suit property by virtue of a registered gift deed executed in her favour by her parents on 27.9.1963. Being an old lady, she allowed her sons to cultivate the lands and later executed a registered will in favour of her five sons on 30.10.1996. The plaintiff was residing in the house of her second son D.Chikkadevegowda and his two sons 9defendants-1 and 2 in the present suit). 3. The said two sons of her second son took the plaintiff to the office of the Sub-Registrar in the guise of arranging for old-age pension to her in a sum of Rs.2,000/- and on that pretext, the said defendants obtained her thumb impressions on certain documents, which she later came to know as the gift deeds,. Contending that the gift deeds, upon which the defendants stake their claim for ownership, were not executed by her with her free will and consent and the said documents were created by the defendants by playing fraud, undue influence and misrepresentation and that the said gift deeds are, therefore, not valid, the plaintiff sought for declaration and possession on the footing that she continued to be in possession of the property and being interfered with by the defendants, she had to approach the trial court for relief. 4. 4. The defendants, Who are the appellants herein, in their common written statement, contended that the plaintiff had executed the registered gift deeds in their favour on 8.10.2003 and, therefore, the plaintiff has no right, title or interest in the suit schedule properties and they also deny the allegations of fraud, undue influence and misrepresentation. On the other hand, it was their case that, out of her own free volition, the plaintiff gifted the suit properties in favour of the defendants and hence, the suit be dismissed. 5. The above pleadings led to the trial court framing the following issues: i) Whether the plaintiff proves that she is the owner and in possession of the suit property as per the registered gift deed and settlement deed dated 27.9.1963 as pleaded in the plaint? ii) Whether the plaintiff proves the obstruction and interference by the defendants in respect of the suit properties? iii) Whether the defendants prove that the plaintiff has executed two separate gift deeds dated 8.10.2003 in their favour in respect of suit properties as contended in their written statement? iv) If so, whether they prove that they are in possession and enjoyment of the suit properties? v) Whether the plaintiff is entitled for declaration as prayed for? vi) Whether the plaintiff is entitled for permanent injunction as prayed for? vii) What order or decree? 6. The parties led evidence and, after appreciating the evidence on record, the learned judge answered issues- 1, 2, 5 and 6 in favour of the plaintiff and issue-3 was answered against the defendants and issue-4, though was shown as answered in the negative at page-5 of the judgment, a reading of the judgment in detail reveals that the said issue was also answered in favour of the plaintiff. Ultimately, the suit of the plaintiff was decreed by holding that the plaintiff is the absolute owner of the suit schedule properties and in possession and the defendants were restrained from interfering with the plaintiff’s peaceful possession of the suit schedule properties. Aggrieved by the said decision, the defendants are in appeal. 7. I have heard Sri R.S.Ravi, learned counsel for the appellants-defendants, and Shri S.Sreevatsa, learned senior counsel for the respondent-plaintiff, and perused the records of this case. 8. Aggrieved by the said decision, the defendants are in appeal. 7. I have heard Sri R.S.Ravi, learned counsel for the appellants-defendants, and Shri S.Sreevatsa, learned senior counsel for the respondent-plaintiff, and perused the records of this case. 8. The learned counsel for the appellants argued that the trial court could not have decreed the suit of the plaintiff at the first instance because, the plaintiff did not seek the relief of cancellation of the gift deeds executed in favour of the defendants and, therefore, referring to Section 34 of the Specific Relief Act, it is contended that, in the absence of consequent relief of cancellation of the gift deeds being sought for by the plaintiff, the trial court could not have decree the suit. 9. The next submission made is that the trial court erred in appreciating the evidence inasmuch as, though the gift deeds were executed before the Sub-Registrar and though the plaintiff also admits in her plaint itself that the defendants got executed the gift deeds in their favour from the plaintiff, the trial court could not have held that the plaintiff has not executed the gift deeds as per Exs.D-2 and D-3 in favour of the defendants. Reliance is placed on Section 91 of the Indian Evidence Act to contend that, where the terms of contract or any other disposition of property have been reduced to the form of a document and when the said document is also registered in accordance with law as in the instant case, since the gift of immovable property requires registration, the contents of the documents, therefore, cannot be called in question as Section 91 of the Evidence Act says that no evidence shall be given in proof of the terms of disposition of property except by producing the document itself. Therefore, the court below committed an error in not taking note of the above provision of law. 10. It is then contended that, no issue was framed by the trial court on the question relating to fraud or misrepresentation and, therefore, in the absence of there being an issue raised in that regard, the question of the gift deeds being the documents obtained under fraud or misrepresentation also cannot arise. 10. It is then contended that, no issue was framed by the trial court on the question relating to fraud or misrepresentation and, therefore, in the absence of there being an issue raised in that regard, the question of the gift deeds being the documents obtained under fraud or misrepresentation also cannot arise. Mere allegation in the plaint as to the fraud and misrepresentation not supported by the particulars of fraud or misrepresentation cannot come to the aid of the plaintiff in view of Order 6 Rule 4 of the C.P.C. 11. Referring to the documents Exs.D-4 to D-7, which are R.T.C. extracts, the submission made by the appellants’ counsel is that the trial court did not consider these documents and the said documents have got presumptive value. As far as the mental capacity of the plaintiff to execute the gift deeds is concerned, my attention was drawn to the evidence of the plaintiff wherein she has stated that she was mentally sound at the relevant time. 12. It is then contended by the learned counsel for the appellants that, in the absence of a prayer seeking cancellation of the gift deeds, the suit itself was not maintainable and as far as the amendment to the plaint at this stage is concerned, it is submitted that it cannot be permitted at this length of time and it is barred by time. 13. Therefore, relying on the decisions reported in ILR 1996 Karnataka 1067, 1989(1) Karnataka Law Journal 150, AIR 2004 AP 29 , 1968(2) SCR 797 and AIR 1977 Karnataka 99, the learned counsel for the appellants contended that the judgment of the Court below cannot be sustained in the light of the law laid down in the aforementioned cases, more particularly when, without seeking the consequential relief, the mere prayer for declaration will not be sufficient and consequently, the appeal be allowed. 14. 14. On the other hand, the learned senior counsel for the respondent-plaintiff, per contra, argued that though the plaintiff did not seek the relief of cancellation of the gift deeds as void, the very case pleaded by the plaintiff and the issues framed by the trial court and the evidence let in by the parties itself would go to indicate that the plaintiff’s consistent case all through has been that the gift deeds were obtained from her by playing fraud on her and on the pretext of getting her pension, the defendants took the plaintiff to the office of the Sub Registrar and got the gift deeds executed. Therefore, when fraud is pleaded and it is also proved, the gift deeds, therefore, become void documents and, as such, separate relief of seeking cancellation of the gift deeds will not arise and it is only where a document is voidable in nature that the prayer for cancellation of the said document has to be made. 15. The further submission of the learned senior counsel for the respondent-plaintiff is that the very evidence of the plaintiff would go to show that she was totally unaware of the nature of the documents that she was executing before the Sub-Registrar and, therefore, when there is misrepresentation as to the character of the document, the transaction becomes void and not voidable and, as such, even in the absence of there being a specific prayer on the part of the plaintiff in seeking cancellation of the gift deeds, the suit of the plaintiff, therefore, was rightly decreed by the trial court and mere non-mentioning of the gift deeds as having become void in law will not in any way effect the case of the plaintiff and even if the trial court did not make an observation that the gift deeds are void, this court, sitting in appeal, has the power to modify the judgment of the trial court so as to do justice to the case. 16. Nextly it is argued that the defendants have not taken any pleading in their written statement before the trial court as regards the plaintiff not seeking the relief of cancellation of the gift deeds and, therefore, such a pleading cannot be permitted now in this appeal. 16. Nextly it is argued that the defendants have not taken any pleading in their written statement before the trial court as regards the plaintiff not seeking the relief of cancellation of the gift deeds and, therefore, such a pleading cannot be permitted now in this appeal. As far as possession is concerned, it is argued by the learned senior counsel that the trial court has recorded a positive finding in this regard in favour of the plaintiff and this itself shows that the gift deeds were not acted upon by the parties. When the parties understood their case in the light of the pleadings and evidence was led by them, it becomes insignificant if no specific issue is framed by the trial court as far as the plea of fraud is concerned. Even otherwise, the submission made is that, not seeking a prayer for cancellation of the gift deeds cannot be blown out of proportion particularly having regard to the fact that the pleadings in the moffusil courts are loosely drafted. Where fraud is pleaded and proved as to the character of a document, then the document becomes void and hence, a prayer for cancellation of the document does not arise. It is also submitted that Section 34 of the Specific Relief Act speaks of “further relief” which will have to be construed as the relief of possession, whereas Section 31 speaks about cancellation of void or voidable documents at the option of the person who feels threatened by the said document and, therefore. Section 31 cannot be read into Section 34. 17. In support of the aforesaid contentions, the learned senior counsel placed reliance on the decisions reported in AIR 1960 SC 335 , AIR 1981 Raj 29 , AIR 1966 J&K 124 , AIR 1952 SC 47 , AIR 1956 Pat 116 , 2008(3) CCC 433, AIR 1929 Cal 606, AIR 1990 SC 1173 , AIR 1968 SC 856, AIR 1977 Kant 173, AIR 1960 Mad I, and AIR 1952 SC 47 . Apart from drawing support from the aforementioned decisions, the learned senior counsel for the respondent-plaintiff also submitted that in the event of this court arriving at the conclusion that the amendment of the plaint insofar s the relief of cancellation of the gift deeds is required, the plaintiff be permitted to make necessary amendment in the prayer column of the plaint. 18. 18. In the light of the aforesaid contentions put forward and the decisions relied upon by the learned counsel for the parties, the only point for consideration is whether the judgment of the trial court can be said to be unsustainable in law for want of the plaintiff seeking the relief of cancellation of the gift deeds, Exs.D-2 and D-3. 19. The facts which are not in dispute are that the plaintiff was the absolute owner of the suit schedule properties by virtue of a registered gift deed executed in her favour by her parents on 27.9.1963. It is also not in controversy that the plaintiff also had executed a registered will in favour of her five sons on 30.11.1996. The further fact that the plaintiff executed the documents Exs.D-2 and D-3, which are the gift deeds in favour of the defendants, is also not in serious dispute. The plaintiff did not seek the relief of cancellation of the gift deeds as void is also clear from the very prayer in the plaint. Yet another fact of importance which is also not in dispute is that, on the date when the gift deeds were executed by the plaintiff in favour of the defendants i.e., on 8.10.2003, the will which was executed by the plaintiff earlier was also cancelled. That the plaintiff earlier was also cancelled. That the plaintiff was residing in the house of her second son and her two grand sons i.e., the present appellants who are the defendants in the suit, is also an admitted fact. With the above facts in view, one will have to see whether the plaintiff was able to establish before the trial court that the appellants herein played fraud on her and got gift deeds, Exs.D-2 and D-3, executed in their favour. 20. It is in the plaint at paragraph-3 that, she being an old lady and illiterate person, the defendants have misused their position and played fraud on her and got the gift deeds created. It is also averred in the plaint that, if at all the plaintiff was having the intention of gifting the suit properties in favour of the defendants, there would have been a reference in the gift deeds about the will which she had executed earlier in favour of all her five sons. It is also averred in the plaint that, if at all the plaintiff was having the intention of gifting the suit properties in favour of the defendants, there would have been a reference in the gift deeds about the will which she had executed earlier in favour of all her five sons. It is also stated in the plaint that the gift deeds were not executed by her with her free volition but she was deceived by the defendants. It is then stated in the plaint that it was only after the defendants got the revenue records in their names that she became aware of the fraud played on her by the defendants. She even goes to the extent of stating in the plaint that the defendants took away her four gold bangles and a chain and told her that the gift deeds have been registered and, therefore, she cannot do anything to them. It is on the strength of the said averments that the plaintiff approached the trial court for the relief of declaration and to prevent the defendants from interfering with her possession of the suit properties. 21. In order to substantiate the above plaint averments, the plaintiff was examined as P.W.1 and in the course of her evidence, she had adhered to the aforesaid plaint averments. In the cross-examination, it has been brought out that, while the gift deeds were written, she was having good mental capacity but, she denies that she executed the gift deeds after knowing the entire contents. 22. The learned trial judge, after appreciating the evidence let in by the parties, referred to the discrepancies in the evidence of the defendants and has made specific mention of the evidence of D.W.2, an advocate, whose evidence was not found to be inspiring confidence to accept the same as the said witness stated in one breath that it was he who wrote the documents i.e., the gift deeds, in his hand writing, but, in the cross-examination, he has stated that the documents were got done through computer and also says that he has no knowledge of the computers and it is not revealed as to who prepared the said documents with the help of computer. The other fact that the court took notice from the evidence of the defendants was that the very advocate, who was examined as D.W.2, has stated in his evidence that he did not go to the office of the Sub-Registrar. But, this evidence was found to be at variance when the evidence also revealed that the said witness D.W.2 was also present in the office of the Sub-Registrar. 23. D.W.3, who went to the office of the Sub-Registrar, has stated in his evidence that he did not know any thing about the execution of the documents in favour of the defendants and even he does not know whether the plaintiff has put her signature to the documents in question. All these discrepancies and variations in the evidence of the witnesses for the defendants, therefore, led the trial court to take the view that the defendants played fraud and misrepresentation in getting the documents executed in their favour from the plaintiff. 24. In arriving at this conclusion, the trial court also took note of the fact that on the very day when the gift deeds were executed, the registered will executed earlier by the plaintiff was cancelled as per Ex.D-1. It also found that in the gift deeds, there was no mention of the will having been executed by the plaintiff in favour of all her five sons and the said will being cancelled. All these materials coupled with the evidence of P.W.1 that she was taken to the office of the Sub-Registrar by the defendants for making arrangement to get her old age pension and the defendants paid Rs.2,000/- and took her thumb impression on the documents, therefore, led to the inference that the defendants played fraud on the plaintiff and got the gift deeds, Exs.D-2 and D-3, executed in their favour. The said inferences drawn by the trial court cannot be termed as perverse or contrary to the evidence on record. Even as regards possession is concerned, the trial court has recorded a finding at paragraph-12 of its judgment that the plaintiff is in possession of the suit schedule properties and goes on to hold that it is the plaintiff and not the defendants who is the owner of the suit schedule properties. 25. Even as regards possession is concerned, the trial court has recorded a finding at paragraph-12 of its judgment that the plaintiff is in possession of the suit schedule properties and goes on to hold that it is the plaintiff and not the defendants who is the owner of the suit schedule properties. 25. Thus, a close examination of the pleadings of the parties and the evidence led by them and the appreciation of the said evidence by the trial court, therefore, indicates that the trial court was convinced that the gift deeds, Exs.D-2 and D-3, were obtained by the defendants by playing fraud on the plaintiff. 26. The Apex Court, in the case of K.D.Sharma Vs. Steel Authority of India, reported in 2008(3) CCC 433, has held that a judgment/decree obtained by fraud has to be treated as nullity by every court and went on to observe at paragraph-17 of the judgment that, in fraud one gains at the loss and cost of another and even the most solemn proceedings stand vitiated if they are actuated by fraud and fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. 27. In another decision in the case of Brindaban Misra Adhikary Vs. Dhurba Charan Roy, reported in AIR 1929 Calcutta 606, it was held that where it is established that the plaintiff or his transferor was induced by defendant’s misrepresentation to execute a deed of gift of the property in question and he executed the same believing it to be a document of a different kind altogether, the transaction is void and not voidable only and Article 91 has no application to plaintiff’s application for recovery of the property. 28. In yet another decision of the Apex Court in the case of Smt. Dularia Devi Vs. Janardan Singh, reported in Air 1990 SC 1173 , it has been held that where there is misrepresentation as to the character of a document and thumb impression was obtained on the sale deed by making an illiterate woman believe that she was executing gift deed in favour of her daughter, the sale deed is totally void and not voidable. In the said decision, the Apex Court also referred to the decision in Ningawwa Vs. Byrappa, and at paragraph-6, has observed thus; “6. In the said decision, the Apex Court also referred to the decision in Ningawwa Vs. Byrappa, and at paragraph-6, has observed thus; “6. In Ningawwa v. Byrappa, ( AIR 1968 SC 956 ) (supra), this Court referred to the well-established principle that a contract or other transaction induced or tendered by fraud is not void, but only voidable at the option of the party defrauded. The transaction remains valid until it was avoided. This Court then said (Para 5): “The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable. In Foster v. Mackinnon, (1869) LR 4 CP 704, the action was by the endorsee of a bill of exchange. The defendant pleaded that he endorsed the bill on a fraudulent representation by the acceptor that he was signing a guarantee. In holding that such a plea was admissible, the Court observed: It (signature) is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accompany the signature; in other words, that he never intended to sign, and therefore in contemplation of law never did sigh, the contract to which his name is appended……… The defendant never intended to sign that contract or any such contract. He never intended to put his name to any instrument that then was or thereafter might become negotiable. He was deceived, not merely as to the legal effect, but as to the ‘actual contents’ of the instrument.” 29. He never intended to put his name to any instrument that then was or thereafter might become negotiable. He was deceived, not merely as to the legal effect, but as to the ‘actual contents’ of the instrument.” 29. If the aforesaid position in law as regards character of a document is applied to the case on hand, the plaintiff has not only pleaded that fraud was played on her by the defendants but she also led evidence to support the said pleadings and the over all evidence on record and the circumstances under which Exs.D-2 and D-3 were got executed by the defendants and absence of any mention being made in the said documents about the will executed by the plaintiff earlier in favour of her five sons and variations in the evidence of the defendants’ witnesses, therefore, lead to one and the only conclusion viz., that the documents Exs.D-2 and D-3 were obtained by the defendants by playing fraud on the plaintiff. As fraud vitiates everything as has been observed by the Apex Court and the said act on the part of the defendants renders the gift deeds void as far as the plaintiff is concerned, the said gift deeds, therefore, cannot be construed as being in existence. Consequently, the necessity for seeking the relief of cancellation of the gift deeds on the part of the plaintiff does not arise. 30. Apart from the above, it is also the contention of the learned senior counsel for the respondent-plaintiff that no plea was taken by the appellants in their written statement as regards the plaintiff not seeking the relief of cancellation of the gift deeds. Though the learned counsel for the appellants sought to refute this contention by referring to the written statement filed by the defendants and referred to paragraph-6 and 7 of the written statement, I am unable to accept the appellants’ counsel’s submission that the defendants have taken a specific plea as regards the plaintiff not seeking the relief of cancellation of the gift deeds. In other words, no such plea is forthcoming in the written statement and if that is the position in the instant case, following the Apex Court’s decision reported in Air 1960 SC 335 , where a plea for further relief is not taken at the earliest point of time, the same cannot be allowed to be taken in the appellate court. 31. 31. As far as the decisions refereed to by the learned counsel for the appellants are concerned, the facts and circumstances of each case will have to be gone into and seen in that light, the facts before us are entirely different and insofar s the reliance placed by the appellants’ counsel on the decision reported in AIR 1997 Karnataka 99 is concerned, it has to be mentioned that, that decision was rendered in respect of a finding recorded by the trial court on a preliminary issue, whereas, in the case on hand, the trial court has decreed the suit of the plaintiff after a full-fledged trial and after appreciating the evidence in proper perspective. Therefore, the said decision cannot be availed of by the appellants. 32. Though other decisions were referred to by the learned counsel for the appellants, in view of the conclusion reached that, in the case on hand, the plaintiff has established before the trial court that fraud was played on her by the defendants in securing the gift deeds from her and she also having made necessary averments in the pleadings in the plaint in that regard, and the appellants also filed their written statement knowing full well what was the stand taken by the plaintiff in her plaint, and both parties led evidence, non-framing of an issue concerning fraud, therefore, cannot be a serious infirmity in the judgment of the trial court. 33. In the light of the foregoing reasons, the contentions put forward by the appellants’ counsel cannot be accepted as having any force behind them nor the decisions referred to by the appellants’ counsel can be pressed into service on appellants’ behalf. The decisions referred to by the learned senior counsel for the respondent-plaintiff amply make it clear that where fraud is played, the document, which is the outcome of such fraud, will have to be treated as nullity by every court. As such, I do not see any merit in this appeal. Therefore, not seeking the relief of cancellation of the gift deeds by the plaintiff cannot in any way affect her case as the trial court has declared her to be the owner of the suit schedule properties and also being in possession of the same. As such, I do not see any merit in this appeal. Therefore, not seeking the relief of cancellation of the gift deeds by the plaintiff cannot in any way affect her case as the trial court has declared her to be the owner of the suit schedule properties and also being in possession of the same. Therefore, it goes without saying that the gift deeds – Exs.D-2 and D-3, are void ab ignition and cannot affect the ownership right of the plaintiff over the suit properties. 34. The appeal, therefore, stands dismissed. VJJ: MFA NO.2074/2006(CPC) 20.4.2010 ORDER ON ‘BEING SPOKEN TO’ Heard learned Sr. Counsel Shri S. Sreevatsa for the respondent and learned Counsel Shri R.S.Ravi for the appellants in respect of the clarification sought in the judgment delivered on 7.4.2010. 2. It is submitted by learned Sr.Counsel that though this Court has recorded a finding that gift deeds Exs.D2 and D3 are void ab-initio and cannot affect the plaintiffs’ ownership right, this Court therefore may further clarify that the documents be delivered up and cancelled in view of Section 31 of the Specific Relief act. In this regard, he placed reliance on a ruling of the Apex Court reported in AIR 1940 PAT 133 (Bulakram and another Vs. Ganga Bishun Chaudhuri). 3. In the light of the aforementioned submission made by way of clarification, it is made clear that consequent to this Court holding that gift deeds Exs.D2 and D3 being void ab-initio it is ordered to be delivered up and cancelled and a copy of the judgment along with this order and Exs.D2 and D3 shall be sent to the concerned Sub-Registrar for taking necessary action.