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2019 DIGILAW 1590 (KAR)

Chandrakant v. Gundu

2019-07-05

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. The plaintiffs being aggrieved by the Judgment and Decree dated 04.03.2016 passed in R.A.No.280 of 2015 by the XI Additional District and Sessions Judge, Belagavi confirming the Judgment and Decree dated 05.06.2013 passed in O.S.No.433 of 2008 by the III Additional Civil Judge and J.M.F.C., Belagavi has filed this regular second appeal. 2. The parties are referred with their ranks before the trial Court for the sake of convenience. 3. The original plaintiff Smt.Krishnabai Balasaheb Bhatkande filed the suit bearing O.S.No.433 of 2008 against the defendant seeking the relief of declaration to declare that the Gift Deed dated 04.12.2006 is null and void and not binding on plaintiff and for permanent injunction restraining the defendants from evicting the plaintiff form the suit property situated on the first floor of the house bearing No.976 bearing C.T.S.No. 4824/C/46 situated at Ayodhya Nagar, Belagavi. 4. It is the case of the plaintiff that the defendant is her son. She was serving as Teacher and retired as Headmistress. Her husband was addicted to bad vices hence, she purchased the suit property out of her earnings and she brought up her children and educated them and performed their marriage. Thereafter, the plaintiff on the request of the defendant divided her properties into four parts and gave to her children. The defendant and his brothers took the land and got constructed their respective houses with the financial help of the plaintiff. In the month of October or Novermber-2006 the defendant approached her and got executed a WILL pertaining to the suit schedule house. She was taken by the defendant and he obtained her signatures on the document which was in English language and she does not know writing and reading in English, as she studied in Marathi medium. Further, the defendant took undue advantage of the same, the plaintiff was taken to the Sub-Registrar's Office to execute the WILL, by playing fraud got executed Gift Deed on 04.12.2006. She was under the impression that she was executing WILL. Subsequently, she came to know about the fraud played by the defendant. Thereafter, she enquired the defendant, he answered in evasive. Hence, she was constrained to file the said suit. 5. In response to the summons, the defendant appeared before the trial Court and filed written statement. She was under the impression that she was executing WILL. Subsequently, she came to know about the fraud played by the defendant. Thereafter, she enquired the defendant, he answered in evasive. Hence, she was constrained to file the said suit. 5. In response to the summons, the defendant appeared before the trial Court and filed written statement. He has admitted that the plaintiff is his mother and she is residing in the suit property. But he has denied the allegations that he has constructed the house by taking financial assistance from the plaintiff-mother. He has further stated that the plaintiff on her own wish has executed the WILL dated 25.05.2006, and thereafter she has also executed the Gift Deed dated 04.12.2006 in his favour on her own will and wish. He has specifically denied that he has played any fraud upon the plaintiff. He has alleged that plaintiff at the instigation of his sister-Sarojini has filed the suit and prayed for dismissal of the suit. 6. On the basis of the pleadings of the parties trial Court framed the issues. In order to substantiate her case, the plaintiff herself got examined as PW-1 and another witness was examined as PW-2 and got marked three documents. Defendant was examined as DW-1 and he got marked seven documents. The Trial Court after hearing both the parties dismissed the suit of the plaintiff. 7. It appears that immediately after dismissal of the suit the original plaintiff died. Her second son and two daughters being aggrieved by the said Judgment and Decree, filed the R.A.No.280 of 2015 on the file of XI Additional District and Sessions Judge, Belagavi. The appellate Court secured the lower court records, heard the learned counsels for the parties and passed the impugned Judgment on 04.03.2016 thereby dismissed the appeal. Therefore, the plaintiffs being aggrieved by the impugned Judgment have filed this regular second appeal. 8. Heard the learned counsels for the appellants and respondent on admission. 9. At this stage of admission, the appellants have to make out that there is a substantial question of law which needs to be considered in the present appeal. 10. Therefore, the plaintiffs being aggrieved by the impugned Judgment have filed this regular second appeal. 8. Heard the learned counsels for the appellants and respondent on admission. 9. At this stage of admission, the appellants have to make out that there is a substantial question of law which needs to be considered in the present appeal. 10. The learned counsel for the appellants submitted that both the Courts below are not justified in dismissing the suit and the appeal and that the plaintiff has proved that the defendant has obtained Gift Deed by playing fraud and therefore, there is substantial question of law which needs to be considered in the present appeal. 11. Per Contra, the learned counsel for the respondent submitted that absolutely there is no substantial question of law which arises for consideration in the present appeal. Both the Courts below have concurrently held that the plaintiff has failed to prove that the Gift Deed executed by her was obtained by the defendant by practicing fraud. The plaintiff has failed to plead the details of the fraud in the plaint as required under Order- VI Rule-2 and 4 of the Code of Civil Procedure. Consequently, there was no evidence to prove that the defendant obtained the said Gift Deed by practicing fraud. The learned counsel further submitted that the deceased-plaintiff-Krishnabai was working as Teacher and retired as Headmistress. Therefore, the contention of the plaintiff that she did not know English to read and right cannot be accepted. 12. It is admitted that the original plaintiff-Krishnabai is none other than the mother of the defendant and the present appellants are also the second son and two daughters of the deceased-Krishnabai. The plaintiff herself has stated in the plaint that during her life time she has divided the properties into four parts and gave to her four children. The plaintiff has further stated that she was ready to execute the WILL infavour of the defendant and therefore she was under the impression that the defendant took her signatures and got executed the WILL and that she was not aware of the Gift Deed. It is the case of the defendant that the plaintiff has also executed the WILL as per Ex.P.-1 and thereafter Gift Deed as per Ex.P.-2. 13. It is the case of the defendant that the plaintiff has also executed the WILL as per Ex.P.-1 and thereafter Gift Deed as per Ex.P.-2. 13. It is necessary to refer the provisions of Order-VI Rule-4 of the Code of Civil Procedure, 1908 which reads as follows : "4. Particulars to be given where necessary. In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful 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." Therefore, it is necessary on the part of the plaintiff to specifically plead the facts about the misrepresentation, fraud and undue influence as to in what manner fraud was practiced on the plaintiff. 14. Admittedly, in the present suit the plaintiff has not at all stated particulars of the fraud practiced by the defendant. The plaintiff has only stated that the defendant obtained the Gift Deed by practicing fraud, it is not at all sufficient and does not fulfill the requirements of Order-VI Rule-4 of the C.P.C. Both the Courts below have appreciated the evidence on record and have come to the conclusion that the plaintiff has miserably failed to prove that the defendant obtained the Gift Deed by practicing fraud on the plaintiff. The appellants have not at all made out any substantial question of law which arises for consideration in the present appeal. It is not made out that the impugned Judgment and Decree passed by the Courts below are perverse and as such absolutely there is no substantial question of law which arises to be considered in the present appeal. Under these circumstances, appeal being devoid of merits is liable to be dismissed. Accordingly, the appeal is dismissed. Parties are directed to bear their own costs. In view of the disposal of the appeal pending application, if any stands disposed of as it do not survive for consideration.