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Telangana High Court · body

2025 DIGILAW 875 (TS)

Smt. Lakshmi Bai v. Ganga Bai

2025-06-10

TIRUMALA DEVI EADA

body2025
JUDGMENT : 1. This is an appeal filed by the appellant, being aggrieved by the judgment and decree, dated 05.11.2018 passed in O.S.No.93 of 2009 by the learned XX Additional Chief Judge, City Civil Court, Secunderabad (for short “the trial Court”). 2. The appellant herein is the plaintiff and the respondent is the defendant before the trial Court. The parties herein are referred to as they were arrayed in the suit before the trial Court for the sake of convenience and clarity. 3. The case of the plaintiff before the trial Court is that she is the absolute owner and possessor of the house bearing No.11-2- 105/A (old 11-2-105) admeasuring 75.55 Sq.yards, situated at Mylargadda, Secunderabad having purchased the same from her vendor Sri K.Satyanarayana for a valuable sale consideration by way of a registered sale deed vide document bearing No.2247 of 1995, dated 26.09.1995. It is further averred by the plaintiff that during the month of June, 2000, she performed the marriage of her only daughter and to perform the said marriage she had availed a hand loan of Rs.1,00,000/- from the defendant who is none other than her own sister and that the plaintiff promised to repay the hand loan as soon as she can. For advancing the said hand loan, the defendant had insisted for a simple mortgage deed to be executed and that there was no delivery of the original sale deed standing in favour of the plaintiff and there was no actual delivery of possession. Having left with no other option the plaintiff had executed a mortgage deed which was not registered, but was notarized and that the defendant retained the original copy. Subsequently, in July, 2001 the defendant informed the plaintiff that she wanted the notarized mortgage deed to be registered and for that purpose the defendant took the plaintiff to the registrar office and obtained her thumb impression on some papers and that the plaintiff was informed that they pertain to the mortgage deed which was earlier executed between them and that since the plaintiff is an illiterate, she had no knowledge regarding the nature of documents and thus, she has affixed her thumb impression on the papers at the insistence of defendant. The plaintiff was under the bonafide belief that the papers pertain to mortgage deed and during the month of October 2003, the plaintiff repaid the hand loan of Rs.1,00,000/- to the defendant and requested her to execute a cancellation deed cancelling the registered mortgage deed and the defendant started postponing the matter and started avoiding the plaintiff and has not come forward for cancelling the mortgage deed. While so, the defendant had filed a suit vide O.S.No.916 of 2008 and I.A.No.1271 of 2008 in November 2008, seeking injunction against the plaintiff and her children alleging that she is the owner of the schedule property and that she has got the said property through a registered Gift Deed alleged to have been executed by the plaintiff conveying 50 Sq.yards and that the plaintiff and her children were allegedly interfering with the peaceful possession of the defendant. Then the plaintiff gained knowledge that the defendant has cheated her and made her to execute a gift deed in her favour under the guise of mortgage deed and the plaintiff being an illiterate is not even aware of the recitals of the Gift Deed. It is submitted by the plaintiff that she never entertained any intention of gifting the property to anyone and that the said gift deed was executed by playing fraud on her and that it is forged document. It is further averred that the plaintiff has five sons who stayed with her along with their families in the same property purchased by her under the registered sale deed No.2247 of 1995 and by no stretch of imagination she can alienate 50 Sq.yards out of the said 75.55 Sq.yards and that she has never gifted any property nor delivered any possession in favour of the defendant. It is further averred that the defendant has filed an alleged receipt executed by the plaintiff as one of the documents in O.S.No.916 of 2008 and that the receipt shows that the plaintiff has received a sum of Rs.1,00,000/- towards sale consideration from the defendant for the sale of suit schedule property. It is further averred that the defendant alleges that the plaintiff has executed a gift deed in her favour and on the other hand has filed a receipt towards proof of receipt of sale consideration for the same property. It is further averred that the defendant alleges that the plaintiff has executed a gift deed in her favour and on the other hand has filed a receipt towards proof of receipt of sale consideration for the same property. Thus, the plaintiff’s case is that she never entertained any intention either to gift the property or sell the property and that the defendant has created documents on her will and wish. It is their case that the defendant has obtained injunction order on 18.04.2008 against the plaintiff and her children and under the guise of the said order, the defendant has taken over the possession of the property on 24.04.2009 and she is making efforts to demolish the property and alter the nature of the property. Thus, the plaintiff has filed a suit seeking the relief for cancellation of gift deed and for delivery of possession. 4. The defendant has filed written statement denying all the allegations made against her but admitted the ownership of plaintiff over the house property bearing No.1105/A admeasuring 75.55 Sq.yards situated at Mylarguda, Secunderabad and she has also admitted that the plaintiff has purchased the same from K.Sathyanarayana through document No.2247 of 1995. She further submitted that the plaintiff is also the owner of house property bearing No.11-2-105/A (old 11-105) admeasuring 80 Sq.yards situated at Slum area, Mylargadda, Secunderabad by virtue of a sale deed dated 26.09.1995 vide document No.2246 of 2005 and that the plaintiff was the owner of 155 Sq.yards in total. She further admitted that the hand loan taken by the plaintiff from the defendant to an extent of Rs.1,00,000/- for performing the marriage of plaintiff’s daughter. The defendant further submitted that she has not taken any mortgage deed from the plaintiff and she never has taken the defendant to the Registrar office and has not obtained any thumb impression on some papers. The defendant further submitted that the plaintiff has expressed her inability to repay the hand loan taken from the defendant and thus, wanted to gift her 50 Sq.yards to the defendant in lieu of loan amount of Rs.1,00,000/-. The defendant further submitted that the plaintiff has expressed her inability to repay the hand loan taken from the defendant and thus, wanted to gift her 50 Sq.yards to the defendant in lieu of loan amount of Rs.1,00,000/-. Accordingly, both the plaintiff and defendant along with the plaintiff’s son Y.Kishore went to Secunderabad Court premises and got prepared an agreement of sale on 02.07.2001 and also a declaration and that both the documents were signed in the presence of notary by the plaintiff and her son as a witness and that the notary has advised to go for a registered sale deed instead of notarized agreement of sale and based on that advise the stamp duty was calculated and found that the amount was very high and therefore, on the advice of document writer, a gift deed was executed and registered and that the plaintiff’s son has signed as witness on the gift deed. The defendant further submitted that the Registrar has verified the gift deed and further ascertained from the plaintiff about the contents of the gift deed and explained to the plaintiff and after getting satisfied over the contents only then the plaintiff has registered the gift deed on 02.07.2001. It is her contention that if the plaintiff has paid the entire hand loan, she could have as well sought for return of the mortgage deed instead of asking a cancellation and further alleged that the plaintiff also has not produced any receipt for the said payment of Rs.1,00,000/-. The defendant has admitted that she has filed O.S.No.916 of 2008 and sought injunction against the plaintiff and that the plaintiff has not preferred any appeal against the said order. It is contended by the defendant that the plaintiff herself has stated that she is residing along with her five sons in the suit schedule premises and how the defendant could dispossess the plaintiff and occupy 50 Sq.yards out of 75 sq.yards and that the said allegation is far for imagination. It is further contended by the defendant that she has already demolished old mud structure and constructed ground + two floors and thus, the question of cancelling the gift deed and giving possession to the plaintiff does not arise. 5. Based on the above pleadings, the trial Court has framed the following issues for trial: “1) Whether the gift deed dated 02.07.2001 can be cancelled? 5. Based on the above pleadings, the trial Court has framed the following issues for trial: “1) Whether the gift deed dated 02.07.2001 can be cancelled? 2) Whether the plaintiff is entitled for recovery of possession? 3) Whether the plaintiff is entitled for perpetual injunction as prayed for? And 4) To what relief?” 6. At the time of trial, the plaintiff got examined PWs 1 to 5 and got marked Exs.A1 to A11. On behalf of the defendant, DWs1 and 2 were examined and Exs.B1 to B10 were marked. 7. Based on the evidence on record, the trial Court has dismissed the suit. Aggrieved by the said judgment and decree, the present appeal is preferred by the plaintiff. 8. Heard the submissions of Sri V.M.M.Chary, learned counsel for the appellant and Sri N.Bhujanga Rao, learned counsel for the respondent. 9. The learned appellant counsel has argued that the trial Court ought to have held that the burden of proof of execution of registered gift deed lies on the defendant and not on the plaintiff. He further argued that the trial Court has not appreciated the evidence on record in a proper perspective and wrongly held that the burden of proof is on the plaintiff and has erroneously raised a presumption under Section 114 of the Indian Evidence Act. He further argued that the gift deed cannot be for a consideration and the defendant having taken dual pleas stating that the property was gifted to her but at the same time has projected a receipt in her favour which falsifies the case of the defendant and that the trial Court has not appreciated the said fact properly. He further argued that the trial Court has wrongly held that PWs 2 to 5 are hearsay witnesses. He further argued that the trial Court has made an error basing its decision on the admission made by the plaintiff that she has signed on the alleged gift deed. It is the contention of the plaintiff that she has signed the document believing it to be mortgage deed, which the trial Court has failed to appreciate. He further argued that the trial Court failed to appreciate the fact that the plaintiff had six children and there is no reason to gift the suit schedule property to her sister in lieu of payment of Rs.1,00,000/- when the property itself is worth more than Rs.5 Lakhs. He further argued that the trial Court failed to appreciate the fact that the plaintiff had six children and there is no reason to gift the suit schedule property to her sister in lieu of payment of Rs.1,00,000/- when the property itself is worth more than Rs.5 Lakhs. He further argued that the plaintiff never expressed any inability to repay the loan and never offered to gift the suit schedule property to defendant and that the trial Court has believed the false case put forth by the defendant and has erroneously dismissed their suit. He further prayed to set aside the judgment and decree passed by the trial Court by allowing this appeal. 10. The learned respondent counsel, on the other hand, has submitted that the trial Court has properly appreciated the evidence on record. He further argued that the plaintiff has signed the gift deed and her son has attested the document and that having satisfied with the contents of the gift deed, the plaintiff has signed the said gift deed and therefore, now she cannot turn around and say that it is a forged document. He further argued that on one breath the plaintiff says that under the impression that it is a mortgage deed, she has signed the document on the other hand, she alleged that it is a forged document. He further argued that though the plaintiff alleges that she has repaid the hand loan, she failed to produce any receipt in proof of the same and further if at all she has repaid the loan, she could have insisted for return of mortgage deed but instead she is seeking cancellation of mortgage deed. Thus, the plaintiff has come up with a concocted story as the value of the property has increased multifold. He further argued that in fact, the loan was not repaid and due to her inability she has expressed her intention to get the property registered in the name of defendant and when they wanted to execute a sale deed, the stamp duty to be paid was very high and thus, a gift deed has been executed by the plaintiff in favour of the defendant. Having admitted the signature on the document, the plaintiff has no right to say that it is a forged document and she cannot seek its cancellation. Having admitted the signature on the document, the plaintiff has no right to say that it is a forged document and she cannot seek its cancellation. He therefore, prayed to uphold the judgment and decree of the trial Court. 11. Based on the above rival submissions, this Court frames the following points for consideration: 1) Whether the gift deed dated 02.07.2001 is true, valid and binding on the plaintiff? If not whether the plaintiff is entitled to seek for its cancellation? 2) Whether the plaintiff is entitled for recovery of possession of the suit schedule property and consequential injunction? 3) Whether the judgment and decree of the trial Court is sustainable in law and under the facts? 4) To what relief? 12. POINT NO.1 a) The admitted facts in the present case are that the plaintiff and defendant are the natural sisters and that the plaintiff is the owner of house property bearing No.1105/A admeasuring 75.55 Sq.yards situated at Mylarguda, Secunderabad and also that the plaintiff is the owner of house property bearing No.11-2-105/A (old 11-105) admeasuring 80 Sq.yards situated at Slum area, Mylargadda, Secunderabad by virtue of a sale deed dated 26.09.1995 vide document No.2246 of 2005 and that the plaintiff was the owner of 155 Sq.yards in total. It is the contention of the plaintiff that she borrowed a hand loan from the defendant to perform her daughter’s marriage in the year 2000 and that to safeguard the repayment to her sister the defendant herein has insisted for execution of a mortgage deed and that under a strong belief and bonafide impression that the deed is a mortgage deed, she has signed on some documents at the instance of defendant at the registration office and that subsequently, she has repaid the loan after one year. After the said repayment, she insisted her sister to cancel the mortgage, which she has avoided and that the defendant has filed a suit for injunction against the plaintiff, then the plaintiff got to know that the defendant is in possession of gift deed alleged to have been executed by the plaintiff in her favour. It is the case of the plaintiff that the defendant herein has fraudulently obtained her signature on the gift deed under the guise of mortgage deed. It is the case of the plaintiff that the defendant herein has fraudulently obtained her signature on the gift deed under the guise of mortgage deed. b) To prove her case, the plaintiff got examined herself as PW1 and she has reiterated the averments of the plaint in her chief examination. During her cross examination, it is elicited that the defendant is in possession of 70 sq.yards and that the defendant is residing in the suit schedule property and that in the year 2000 the defendant got inducted into possession of property. She admitted that there is a separate drinking water facility to her house and there is another tap to the suit schedule property. It is elicited from her cross examination that on the date of registration, herself and her family members were residing together and has stated that her children were not aware about the present suit. She admitted that the defendant filed suit against her and she filed written statement in the said suit and that the defendant has obtained temporary injunction against her but she has not filed any appeal for cancellation of the said injunction order. It is elicited from her that her house is situated in an area of 100 Sq.yards and that the house of the defendant is situated in 50 yards of the site. It is further elicited that the total extent of the property is 150 Sq.yards and out of the same 50 Sq.yards is in possession of the defendant. c) PW2 is the cousin brother of plaintiff and defendant. He supported the version of the plaintiff. In his cross examination, it is elicited that he was not present at the time of money transaction between the plaintiff and the defendant and he is also not a witness to the alleged repayment of amount by the plaintiff to the defendant. d) PW3 is the brother of plaintiff and defendant. He too has supported the case of the plaintiff and in his cross examination he has stated that he does not know the contents of his chief affidavit, thus, his evidence cannot be looked into. e) PW4 is a neighbor of plaintiff and defendant. d) PW3 is the brother of plaintiff and defendant. He too has supported the case of the plaintiff and in his cross examination he has stated that he does not know the contents of his chief affidavit, thus, his evidence cannot be looked into. e) PW4 is a neighbor of plaintiff and defendant. In his cross examination it is elicited that he does not know about the suit transaction and about the payment of any amount and he deposed that the plaintiff has taken Rs.1,00,000/- from defendant for the purpose of her daughter’s marriage and further it is elicited that she does not know as to when did the defendant come into possession of the suit schedule property. f) PW5 is another neighbor of plaintiff and defendant. In her cross examination, it is elicited that the plaintiff has obtained loan from a Marwadi person by pledging the documents and that the said transaction was arranged by the defendant and she was not present at the time of payment of cash and she has no knowledge about the execution of any gift deed and she stated that she signed on the chief affidavit when the son of the plaintiff approached her. Though she claims to be the neighbor of plaintiff and defendant, she says that she does not remember when did the defendant construct the house but has further stated that the suit schedule property was constructed by the defendant. g) Thus, the evidence of PWs 2 to 5 does not aid the plaintiff to prove that she repaid the loan amount and that her signature was fraudulently obtained on the gift deed. h) A perusal of Ex.A1 reveals that it is a sale deed executed by K.Sathyanarayana in favour of Smt.T.Laxmi Bai i.e. the plaintiff herein vide document No.2247 of 1985 selling the house bearing No.11-2-105/A (old No.11-2-105) admeasuring 75.55 Sq.yards. The said sale deed is not in dispute. Ex.A2 is the gift deed which shows that Y.Laxmi Bai as a Donor has executed gift deed in faovur of Ganga Bai who is the Donee and the recitals show that it is gifted out of love and affection and that the Donee is a natural sister of Donor conveying the H.No.11-2-105/A (old H.No.11-2-105) admeasuring 50 Sq.yards, it bears the signature of Donor and signature of 1 st witness is shown to be of one Kishore. The defendant’s case is that Kishore is the first son of plaintiff and that he stood as a witness. Ex.A3 is a receipt issued for Rs.1,00,000/- towards the sale of house bearing No.11-2-105/A, this receipt is dated 02.07.2001. i) A close perusal of Exs.A2 and A3 reveal that both are executed on the same date i.e. on 02.07.2001. The contention of the plaintiff is that she never executed a gift deed but she admits her signature saying that she has signed the document on a bonafide impression that it is a mortgage deed. The recitals of Ex.A3 reveal that it is received towards sale consideration. The loan transaction is admitted by both the parties, which happens to have taken place in the year 2000 for the performance of plaintiff’s daughter’s marriage. However, the receipt is dated 02.07.2001, thus, the case of the defendant get probabilised because if at all the receipt was executed in lieu of loan transaction, it could have been executed in 2000 itself but whereas the said receipt is dated 02.07.2001 and the case of the defendant is that she paid the amount in 2001 as initially they intended to get a sale deed executed but after learning about the heavy stamp duty that has to be paid they converted it into the gift deed on the advice of the document writer. The plaintiff’s version is that she has executed a receipt by taking a loan. If at all that has to be believed to be true, the receipt could have been executed on the day of loan amount. j) Ex.A4 is the judgment in O.S.No.196 of 2006 which was dismissed for default as the plaintiff failed to prosecute the suit. Ex.A5 is the First Information Report registered on a complaint given by the son of the plaintiff. The documents under Exs.A6 to A10 reveal the payment of electricity and water bills over the suit schedule property which are not in dispute because it is also admitted by the defendant that out of the total 150 Sq.yards purchased from K.Sathyanarayana by the plaintiff, the plaintiff is residing in 100 Sq.yards and 50 Sq.yards is sold to the defendant, thus, the suit schedule property bears the same number. Therefore, the said bills do not aid the plaintiff in proving that the gift deed is a sham document. Therefore, the said bills do not aid the plaintiff in proving that the gift deed is a sham document. k) Her contention is that the gift deed is a sham document and it is sought for cancellation. She has to prove that the gift deed was executed in a fraudulent manner, she herself admitted the signature but stated that she has signed believing it to be mortgage deed. The receipt executed by her falsifies her statement. Further, the plaintiff alleged that she repaid the loan amount to the defendant but no proof is filed in this regard. l) The appellant’s counsel has pointed out the discrepancy in the document under Ex.A2 at page No.2 at para No.3 it is mentioned that the Donor gifted the property, out of great love and affection towards his wife. The counsel has argued that if at all she has gifted, it should be mentioned as sister but not wife. However, at para No.2 in the same page i.e. page No.2 of the gift deed reveals that the Donee is the natural sister of the Donor herein. Therefore, the said typographical mistake cannot be held to disprove the validity of the document and the recitals of the gift deed further prove that the possession was also handed over to the Donee over 50 Sq.yards. m) It is pertinent to mention herein about the boundaries that are mentioned in the gift deed/Ex.A2 and also the sale deed/Ex.A1. They reveal that towards eastern and western boundaries, portion of H.No.11-2-105/A is located. This again strengthens the defendant’s case. It is putforth by the defendant that the plaintiff has purchased a house built in 150 Sq.yards from K.Sathyanarayana, bearing No.11-2-105/A under two documents i.e. 75 Sq.yards under each document. Therefore, if 50 Sq.yards is transferred to defendant, then the remaining portion of H.No.11-2-105/A falls to be on the boundary of east and west of the schedule of property mentioned in the gift deed. The same boundaries are mentioned in Ex.A1 which is a sale deed executed in favour of the plaintiff with regard to the 75 Sq.yards. The plaintiff is silent with regard to her purchase of other 75 Sq.yards from K.Sathyanarayana. However, it is elicited during her cross examination that she is in possession of 100 Sq.yards while the defendant is in possession of 50 sq.yards.This again probabilises the case of defendant to be true. The plaintiff is silent with regard to her purchase of other 75 Sq.yards from K.Sathyanarayana. However, it is elicited during her cross examination that she is in possession of 100 Sq.yards while the defendant is in possession of 50 sq.yards.This again probabilises the case of defendant to be true. n) The defendant also got examined DWs 1 and 2 and got filed Exs.B1 to B10. Ex.B1 is the tax assessment towards suit schedule property issued in the name of Gangu Bai and house number is shown as 11-2-105/C. Ex.B2 is the electricity receipt. Exs.B3 and B4 are the counter and written statement filed by defendant No.1 in O.S.No.916 of 2008. In the suit under O.S.No.916 of 2008 filed by the defendant, the suit schedule property is mentioned as 11-2-105/C. Ex.B5 is the copy of Ex.A3. Ex.B6 is the vakalat filed in O.S.No.916 of 2008. Ex.B7 is the acknowledgment receipt dated 04.11.2008 issued by the electricity department having received the fee from Gangu Bai for obtaining new electricity connection. Ex.B8 is the bunch of water bills and payment receipts issued towards payment of water bills in the name of Gangu Bai over the H.No.11-2-105/A. Ex.B9 is also a copy of gift deed. By pointing out at Ex.B9 and Ex.A2 the appellant’s counsel has argued that in the recitals of Ex.B9, there is a correction at page No.2 saying that the gift deed is towards her sister. The words ‘her sister’ is written by hand, while under Ex.A2 it is typed as ‘her wife’. Pointing out this discrepancy, the appellant’s counsel has argued that it is a created document. Once the plaintiff has admitted that she has affixed her thumb impression on the document and she has also admitted that she went along with her sister and has signed the documents and her son has also attested as a witness, then, the correction and the typographical mistake in the said documents cannot be held against the validity of the documents itself. Thus, the plaintiff could not place it on record that the gift deed is not valid. The contents of the document show that it is a gift deed, conveying the suit schedule property to the defendant, though the plaintiff alleges that it was fraudulently executed by the defendant under the guise of mortgage deed, she could not prove the said fact. The contents of the document show that it is a gift deed, conveying the suit schedule property to the defendant, though the plaintiff alleges that it was fraudulently executed by the defendant under the guise of mortgage deed, she could not prove the said fact. On the other hand, the evidence putforth by the defendant probabilise the case of the defendant. o) Since, the issue is with regard to the cancellation of gift deed under Ex.A2 it is pertinent to refer Section31 of the Specific Relief Act. “31. When cancellation may be ordered: (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. (2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.” p) The document can be sought for cancellation only when it is proved to be void or voidable against the persons seeking its cancellation and if it is left outstanding it would cause some damage to that person. In this case, the document was not proved to be void or voidable and hence, it cannot be sought for cancellation. Therefore, point No.1 is answered against the plaintiff. 13. POINT NO.2: In view of the findings arrived at point No.1, the plaintiff is not entitled to seek any relief of delivery of possession or injunction against the defendant. 14. POINT NO.3: In view of the reasoned findings arrived at point Nos.1 and 2, it is held that the judgment and decree passed by the trial Court are found to be well reasoned and hence, they are held to be sustainable in law and under the facts and circumstances of the case. 15. POINT NO.4: In the result, the appeal is dismissed upholding the judgment and decree, dated 05.11.2018 passed in O.S.No.93 of 2009 by the learned XX Additional Chief Judge, City Civil Court, Secunderabad. No costs. 15. POINT NO.4: In the result, the appeal is dismissed upholding the judgment and decree, dated 05.11.2018 passed in O.S.No.93 of 2009 by the learned XX Additional Chief Judge, City Civil Court, Secunderabad. No costs. Miscellaneous Applications, if any, pending in this appeal shall stand closed.