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2013 DIGILAW 795 (AP)

Narra Venkat Ram Reddy v. Narra Susheela

2013-09-21

L.NARASIMHA REDDY, S.V.BHATT

body2013
JUDGMENT : - L. NARASIMHA REDDY, J : - This appeal is filed by the plaintiff in OS No.2 of 1992 on the file of Subordinate Judge, Siddipet. 2. The sole appellant died during the pendency of the appeal and his legal representatives are brought on record. 3. For the sake of convenience, the parties are referred to as arrayed in the suit. 4. The 1st defendant is the daughter-in-law of the plaintiff and the 2nd defendant is the son of the 1st defendant. The suit was filed for the relief of cancellation of gift dated 30.11.1991 executed by the plaintiff in relation to Acs.23.22 guntas, and for perpetual injunction to restrain the defendants from interfering with his possession over the suit schedule property of about 31 acres. 5. The averments in the plaint are that the plaintiff is the only son of Smt. Narra Rangamma and she died in the year 1989 leaving behind an extent of Acs.31-05 guntas of land in different survey numbers. The plaintiff has a son by name Narra Srinivas Reddy and a daughter by name Smt. Narsamma; and his son Srinivas Reddy married to the Ist defendant. The couple have a son i.e., the 2nd defendant. It was pleaded that the relationship between Srinivas Reddy and the 1st defendant were not cordial particularly after the birth of the 2nd defendant and from about 1995, the 1st defendant was living separately from her husband duly receiving maintenance from him. The plaintiff further pleaded that the 1st defendant and her brother brought some unsocial and goonda elements to him and by exerting coercion, obtained the gift deed in favour of the 2nd defendant in respect of the suit schedule property. It was also pleaded that to give a semblance of genuinity to the transaction, the 1st defendant executed an agreement on 30.11.1991 undertaking not to alienate the property that was subject-matter of the gift deed. It was pleaded that there was no legality for the gift and the suit was filed before any acceptance by the donee. It was ultimately pleaded that the gift deed is tainted with the factors like coercion, threat and undue influence. 6. The plaintiff pleaded that he continued to be in possession of the suit schedule property and he referred to the pahanies that were issued for the period subsequent to execution of the gift deed. It was ultimately pleaded that the gift deed is tainted with the factors like coercion, threat and undue influence. 6. The plaintiff pleaded that he continued to be in possession of the suit schedule property and he referred to the pahanies that were issued for the period subsequent to execution of the gift deed. It was alleged that the 1st defendant tried to interfere with his possession and thereby it became necessary to seek the relief of perpetual injunction. 7. On behalf of the defendants, a counter-affidavit is filed. It was pleaded that the allegations in the plaint as to desertion on the part of the 1st defendant are not true and that she did not leave the matrimonial home at any point of time. It was pleaded that the gift deed was executed by the plaintiff in favour of his grandson, the 2nd defendant, out of love and affection and that the daughter of the plaintiff is behind the filing of the suit. The allegation as to bringing of unsocial elements to compel the plaintiff to execute the gift deed is denied. The defendants further pleaded that possession of item Nos.5 and 6 of the suit schedule properties were delivered on 30.11.1991 itself and ever since then, they are in possession of the same. They have also asserted that the daughter of the plaintiff by name Smt. Narsamma deserted her husband and having regard to the fact that the plaintiff is an old man suffering from leprosy and his son i.e., husband of the 1st defendant is a deaf and dumb person, she gained control over the family and got filed the suit. It was also alleged that attempts were made to snatch away the Mangalasuthram from the 1st defendant and to push her in a well on 28.11.1991, and that she was rescued by the neighbours. Reference was made to OS No.99 of 1992 filed in the Court of District Munsiff, Siddipet by defendant Nos. 1 and 2 for the relief of injunction. 8. The trial Court dismissed the suit through judgment dated 5.3.1997. Hence this appeal. 9. Sri B. Narayana Reddy, learned Counsel for the plaintiff (appellant), submits that the only son of the plaintiff was married to the 1st defendant, but she deserted him and started living in the house of her parents. 1 and 2 for the relief of injunction. 8. The trial Court dismissed the suit through judgment dated 5.3.1997. Hence this appeal. 9. Sri B. Narayana Reddy, learned Counsel for the plaintiff (appellant), submits that the only son of the plaintiff was married to the 1st defendant, but she deserted him and started living in the house of her parents. He submits that at a time when the relationship between the plaintiff on one hand and the defendants on the other was strained, the gift deed was got executed by exerting tremendous pressure through the left wing extremists and being in a helpless condition, the plaintiff, who was suffering from old age and leprosy, had to sign the document. He submits that the illegality is evident from the fact that the gift deed does not even contain the signature or thumb impression of the plaintiff. It is submitted by him that the oral and documentary evidence clinchingly proves that the document was obtained through coercion, but the trial Court dismissed the suit. According to the learned Counsel, it is a typical case, where the circumstances speak for themselves and a gift deed, which is supposed to be out of free will of the donor, was procured by exerting pressure and through coercion. 10. Sri K. Raghuveer Reddy, learned Counsel for the defendants (respondents), on the other hand, submits that on account of the interference by the daughter of the plaintiff in the family life of the 1st defendant and her husband, a situation has developed, whereunder the plaintiff himself thought of securing the interest of his only grandson, the 2nd defendant, and accordingly he executed the gift deed. He submits that absence of signature or thumb impression of the plaintiff, on the gift deed is in view of the fact that the plaintiff was suffering deformity to the hands due to leprosy and accordingly an endorsement was made by the Registrar after getting confirmation from him. Learned Counsel further submits that the suit was filed only on account of the pressure exerted upon the plaintiff, by his daughter. It is also pleaded that the gift was accepted and the possession of the property was delivered and that there is no basis to seek the relief of cancellation of the deed. 11. Learned Counsel further submits that the suit was filed only on account of the pressure exerted upon the plaintiff, by his daughter. It is also pleaded that the gift was accepted and the possession of the property was delivered and that there is no basis to seek the relief of cancellation of the deed. 11. In view of the pleadings before it, the trial Court framed the following issues for its consideration: (1) Whether the gift deed was executed by the plaintiff on 30.11.1991 vide Document No.3555 of 1991 in favour of defendant No.1 under fear of life threat and whether the gift deed was not executed with the free will and consent of the plaintiff and is liable to be cancelled? (2) Whether the plaintiff is entitled for perpetual injunction in respect of the suit schedule properties? 12. On behalf of the plaintiff, PWs. 1 to 7 were exan1ined and Exs. A1 to A28 were filed. On behalf of the defendants, DWs. l to 4 were exan1ined and Exs.81 to 86 were marked. The suit was dismissed by the trial Court. The points that arise for consideration before this Court are: (1) Whether the plaintiff made out a case for cancellation of the gift deed dated 30.11.1991 in favour of the 2nd defendant? (2) Whether the judgment of the trial Court suffers from any illegality or infirmity? Point No.1 : 13. The plaintiff was the only son of his parents and he succeeded to a substantial extent of immovable property. He has a son, and a daughter. The 1st defendant is daughter-in-law of the plaintiff, and the 2nd defendant is his grandson. Though the daughter of the plaintiff was married, it appears that she continued to live in the house of her parents, on account of the breakdown of her marriage. 14. It is not uncommon that gift settlements are made by the elderly persons in a family, in favour of their grandchildren particularly when they doubt the future of such children in the hands of their parents. However, the gift must be made out of tree will, and execution of the document must be in accordance with the law, particularly when immovable property is involved. It needs to be seen as to whether the gift deed, EX.A1 executed by the plaintiff is valid or not. 15. EX.A1, which is equivalent to EX.B1, was executed and registered on 30.11.1991. It needs to be seen as to whether the gift deed, EX.A1 executed by the plaintiff is valid or not. 15. EX.A1, which is equivalent to EX.B1, was executed and registered on 30.11.1991. Since the plaintiff is a person suffering from leprosy, and not able to sign, or put thumb impression, special procedure prescribed under the Registration Act and the Rules made thereunder is said to have been followed. The principal ground on which the plaintiff seeks cancellation of Ex. A1 is that, he executed the same under coercion and threat. Deposing as PW1 he stated that one day preceding the date of execution, he was called to the office of the Gram Panchayat and the Sarpanch, who is inimically disposed against their family, has conducted a panchanama. He further alleged that the 1st defendant brought some antisocial elements to the panchayat and a promise was extracted from him, for execution of the gift deed. 16. On the next day, the plaintiff is said to have been taken in an auto rickshaw to the Office of the Sub-Registrar. There are contradicting versions even from the plaintiff, as to what happened at the Sub Registrar's Office. The same would be dealt with, a bit later. 17. Whenever the plea of fraud, misrepresentation or coercion is taken by a plaintiff in a suit, the particulars thereof must be furnished in detail. Rule 4 of Order VI C.P.C reads: "Order VI Rule 4: Particulars to be given where necessary:-In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading". 18. Though in the instant case, the plaintiff has taken the plea of coercion, and to certain extent, supplemented the details, he was not specific as to the persons, who coerced him. 18. Though in the instant case, the plaintiff has taken the plea of coercion, and to certain extent, supplemented the details, he was not specific as to the persons, who coerced him. The relevant portion in the plaint reads: As the matter stood thus, the first defendant and her brothers in collusion of goonda elements of village, who are on rivalry to the family of plaintiff, colluded together and got executed the registered gift deed under coercion in favour of plaintiffs grandson, namely Vishnuvardhan Reddy who is son of first defendant and Srinivas Reddy in respect of Sy.Nos.586 and 594 extent acres 6-33 and 16-29 guntas which are item Nos.5 and 6 of suit schedule. The plaintiff was forced to execute registered gift deed by being under threat of life and undue influence and coercion and the deed was got executed forcibly without the consent and free will of plaintiff vide Document No.3555 of 1991 on 30.11.1991, otherwise there was danger to the life of the plaintiff as he was threatened with dire consequences. The gift was not accompanied by delivery of possession and it is not a clear conveyance." 19. This paragraph is bereft of the details, as to who forced him, and what is the manner. Another aspect is that, in the chief-examination, PWI stated that his wife and daughter accompanied him to the panchayat. However, neither of them were examined. 20. Had Ex.A1 been executed on the day on which, the panchayat was held, the existence of coercion or undue influence, as pleaded by the plaintiff, and its impact on the' transaction could certainly have inferred. However, the document was executed on the next day. 21. It is not as if the plaintiff is a week person to meekly submit the pressure from his daughter-in-law. Even according to the evidence on record, he is the highest propertied person in the village and his daughter was the head of a political party in the district, at the relevant point of time. She contested as a Sarpanch, but was defeated. It is just unimaginable that, a family of that nature and structure would yield to the so-called coercion of a woman, living separately from her husband. 22. The plaintiff went to the Office of Sub-Registrar, Siddipet. She contested as a Sarpanch, but was defeated. It is just unimaginable that, a family of that nature and structure would yield to the so-called coercion of a woman, living separately from her husband. 22. The plaintiff went to the Office of Sub-Registrar, Siddipet. Though in the chiefexan1ination, he was silent as to whether his daughter accompanied him, in the cross-examination he stated that she accompanied him to that place. In his chief-examination, the plaintiff stated that the Sub-Registrar came to the autorickshaw, in which he was sitting and asked him whether he gifted the land, and to that, he said 'no'. The relevant portion reads: "......1 did not get down the Auto at the Registration Office and I did not execute any regd. document. The Registrar asked me by coming to the Auto as to whether 1 gifted the land, 1 said no'. I do not know the contents of document. It was not read over to me. 1 was asked to sign. I said I cannot sign. 1 also did not affix my thumb impression." 23. However, in the cross-examination, he changed his version, and said: "The Sub-Registrar did not come to my Auto. He did not ask me anything. 1 did not sign on registration document." 24. If, in fact, there is any coercion, one would expect a person, who is subjected to coercion or undue influence, to submit a complaint to the police in the normal course of conduct. When so many persons are said to have gathered and when the plaintiff and his daughter are not ordinary persons, it is just unimaginable that the document was executed under coercion, that too on the next day, by travelling to the Office of Sub-Registrar to the town. 25. The gift was in favour of the only grandson of the plaintiff. Though the plaintiff pleaded that the 1st defendant, his daughter-in-law, left the house because he is suffering from leprosy, it was elicited from him that, much before the marriage of his son, with the Ist defendant, the plaintiff ascertained from the parents of the Ist defendant, as to whether she is ready to marry his son, notwithstanding the fact that the plaintiff is a leper and his son is deaf. The defendant and her parents are said to have answered in the affirmative. The defendant and her parents are said to have answered in the affirmative. Not a single instance of the Ist defendant, harassing the plaintiff, or his son, were furnished. 26. It was the specific case of the 1st defendant that the trouble started in the family after Narsamma 's return to the house of the plaintiff, deserting her husband and that the plaintiff did not like Narsamma's interference in the family. In the written statement, she has taken a specific plea in this behalf, and it reads: "Para 10: The said Narsamma and her brother Sreenivasa Reddy took all the gold ornaments from the 2nd defendant which are presented by the plaintiff at marriage. They also tried to take chain of Tali (Pustelu) but the second defendant strictly refused their actions. Narsamma did’t tolerate the second defendants refuse and conspired to close the life of the second defendant. On 28.11.1991 at 8.p.m. Narsamma and Sreenivasa Reddy tried to push the first defendant into the well. One Taduri Rama Chandram obstructed the said brutal action and reported to Sarpanch. The Sarpanch of the village took care on that night. Next day village elders decided and advised the 2nd defendant to file a police complaint. Meanwhile, the plaintiff interfered and expressed his incapacity to control that his daughter Narsamma. He also expressed there is a danger to the properties in hands of Narsamma who trying to depose them and pocketed the money. As such the plaintiff came to conclusion to gift the Item Nos.5 and 6 of the suit schedule on the name of his grandson the second defendant, and advised the first defendant to live separately by cultivating the gifted lands without alienating them. Narsamma and Sreenivas Reddy also accepted the said transaction and agreed to give maintenance amount to the defendants. Pam 11: Accordingly on 30.11.1991 the plaintiff executed gift deed the Item Nos.5 and 6 of the suit schedule in favour of second defendant with free consent without force. The said Narsamma, Sarpanch Ramaswami and Desai Reddy and others attested the said gift deed. On the same day the first defendant took the possession on behalf of his minor son and agreed not to alienate above said lands". 27. This is a new plea, in the written statement, in addition to the denial of the contents of the plaint. The said Narsamma, Sarpanch Ramaswami and Desai Reddy and others attested the said gift deed. On the same day the first defendant took the possession on behalf of his minor son and agreed not to alienate above said lands". 27. This is a new plea, in the written statement, in addition to the denial of the contents of the plaint. If the plaintiff was of the view that the said plea taken by the 1st defendant in the written-statement is not correct, he was under obligation to file a rejoinder. He did not file any rejoinder. In the cross-examination, a specific question was put to him, about the contents of the written-statement. His answer was: "I do not know the contents of the written statement filed by the defendants". 28. Without filing any rejoinder also, the plaintiff could have rebutted that plea, by examining his daughter, as witness. That was also not done. 29. The evidence of PW2, even while being inconsistent and not of any help to the plaintiff; has suggested the keen interest, which the daughter of the plaintiff has taken in the matter. In the cross-examination itself, he stated that he was present, both when the panchayat took place and when the registration of the document was made on the next day. However, he changed his version. The relevant portion reads: “I am working in Co-op Bank. I was present at the time of panchayath and also at the time of registration. The witness again says: that he knows till PW I was taken to the Regn. Office and he does not know as to what happened subsequently.... ....1 came to Court today on the request of Narsamma. 1 participated in the panchayath on behalf of my family. My father did not attend the panchayath. Except for this panchayath 1 did not participate any other panchayaths in the village" 30. PW3 is the person who is said to have announced in the Village, about the panchayat, with tom tom. His evidence is of no use to the plaintiff. However, this witness also said that he came to the Court, on the instructions of the daughter of the plaintiff. The statement reads: ......I came to the Court on the instructions of Narsamma. This case is filed by Narasamma and her father..." 31. PW4 was equivocal in his evidence. His evidence is of no use to the plaintiff. However, this witness also said that he came to the Court, on the instructions of the daughter of the plaintiff. The statement reads: ......I came to the Court on the instructions of Narsamma. This case is filed by Narasamma and her father..." 31. PW4 was equivocal in his evidence. In the chief-examination, he stated: .......I came to Siddipet and found Sarpanch Manmiah, Narayana and others at the Regn. Office. Ashaiah. Rajaiah, Balaiah were also present. PW I was sitting in the Auto and he refused to execute the document. About ten or fifteen persons of our village were here. Suseela (D1) and Narsavva were also present at the Regn. Office...." However, in the cross-examination, he said: “..I came to Registration Office at 12.00 p.m. on my own accord. 1 saw PW 1 in a auto-rickshaw. I found the Sarpanch and other villagers. I did not talk to anybody. I found PW I refusing to sign and the villagers insisting him to sign. Narsavva was also present. I came to know in the village that a document was executed by PWI in the Registration Office...." 32. PW5 was deposed about the possession over the land and PW6, the Mandal Revenue Officer. Neither of them have spoken anything about the dispute between the parties. PW7 was also examined in relation to the possession over the property. 33. It is evident that every witness examined by the plaintiff referred to the name of his daughter and spoke about the active part taken by her. His failure to examine her, has its own adverse impact upon his case. An inference, as provided for under Section 114 of the Evidence Act needs to be drawn. Added to that, he did not examine his son. 34. It is not as if that the son of the plaintiff is not capable of deposing before the Court. When the suit was pending, the son filed O.P. against the Ist defendant herein, for divorce, pleading the grounds of desertion and cruelty. The 1st defendant took the plea in that O.P. that it was filed only at the instance of the daughter of the plaintiff, in view of the fact that the plaintiff executed a gift deed in favour of the 2nd defendant. Point No.2: 35. The trial Court has analyzed the oral and documentary evidence on proper lines. The 1st defendant took the plea in that O.P. that it was filed only at the instance of the daughter of the plaintiff, in view of the fact that the plaintiff executed a gift deed in favour of the 2nd defendant. Point No.2: 35. The trial Court has analyzed the oral and documentary evidence on proper lines. As regards the manner of execution of the document, the trial Court took note of the fact that Rule 65 of the A.P. Rules, framed under the Registration Act, was followed, since the plaintiff was suffering from a disease and obviously his fingers were not in proper shape. The purport of the evidence of each and every witness and the effect of failure to examine the daughter of the plaintiff was taken note of. The principle underlying Section 114 of the Evidence Act was applied. 36. We do not find any ground to interfere with the judgment of the trial Court. The appeal is accordingly dismissed. 37. The miscellaneous petitions filed in this appeal shall also stand disposed of. There shall be no order as to costs.