Padma and Others vs H.J. Nandish Gowda and Others

N. Kumar, J—This is plaintiffs� regular first appeal against the judgment and decree of the Trial Court partly decreeing the suit of the plaintiffs and dismissing suit of the plaintiffs in respect of the item Nos. 1 to 3 of the suit schedule property.

The subject matter of the suit is, three items of landed property and one item of house property which are all situated in Huskur village and Bendiganahalli, Bidarahalli hobli, Bangalore East Taluk, which is more particularly described in the schedule to the plaint and hereinafter referred to as the ''schedule property�.

The first plaintiff is the wife, plaintiffs 2 and 3 are daughters and defendant No. 1 is the son of late Sri. S. Jayaramaiah. They constitute a joint family. They were agriculturists. The schedule properties are all joint family properties. The schedule properties fell to the share of Jayaramaih at a partition on 28.3.1967. Thereafter application is filed for mutating his name in the revenue records which was granted in the proceedings MR. No. 9/1985-86 and 4/1985-86. During the life time of Jayaramaiah the family had constructed a residential house in Huskur village bearing Khaneshmari No. 27 which is item No. 4 of the plaint schedule. They were all living in the said family house. The family of late Jayaramaiah was financially sound and had good source of income from agricultural properties. During 2003-04 Jayaramaiah suffered ill-heath on account of hypertension and age related diseases like diabetes and blood pressure. During that time defendant No. 2, who is full time professional in real estate business, befriended with Jayaramaiah. In the year 2006, as Jayaramaiah suffered chronic ill-health, he was hospitalized. Defendant No. 2 - group of associates were often visiting the house as well as hospital where Jayaramaiah was taking treatment. On one or two occasions the second defendant-Associates have volunteered to render financial help to Jayaramaiah, though there was no compulsion or need. Jayaramaiah was advised to undergo cardiac operation in Wockhardt Hospital at Bangalore. At that time the second defendant had good company and association with the first defendant, the only son in the family. In order to extend financial help the second defendant tactfully advised plaintiffs 2 and 3 that as guarantee to the payment made, security is taken from Jayaramaiah by offering immovable landed properties acquired, inherited and possessed by Jayaramaiah as ancestral property. The second defendant, taking advantage of the good relationship with the family and friendly relationship with the first defendant, tactfully requested plaintiff Nos. 2 and 3 as well as Jayaramaiah and his son to subscribe signatures on certain documents said to have been offered as security, the ancestral immovable properties in Huskur and Bendiganahalli villages for the financial help made by him. On the instructions given by Jayaramaiah, plaintiffs 2 and 3 were compelled to subscribe signature on several documents. The plaintiffs were also taken to the office of Sub-Registrar of K.R. Puram. It was assured and made to believe plaintiffs 2 and 3 that the documents sought for execution before the Sub-Registrar, K.R. Puram have been offered as security for the payment made by second defendant. The first plaintiff-wife of Jayaramaiah was obstacle to the transaction. Therefore, second defendant tactfully evaded the first plaintiff to participate and become party to the transaction in the matter of payment and documentation. Jayaramaiah died on 20.2.2008 in the hospital. The family had a great loss and rude shock which they have not recovered yet. The first defendant the only son is not keeping good and cordial relationship with the plaintiffs and he continued with the same old habits. Defendant No. 2, taking advantage of the situation in the family, closely associated with the first defendant in order to develop differences and disputes in the family of the plaintiffs and first defendant and in the first week of May 2001, second defendant made an attempt to interfere with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property. Plaintiffs resisted the high handed act. Then the second defendant revealed that deed of sale is executed in respect of the suit schedule property. Immediately they caused legal notice through their counsel calling upon the 2nd defendant to disclose and place material if any which would create interest or which take away the legal right and interest of plaintiffs in the suit schedule property. Notice was avoided and it was returned with a shara ''no such firm is in the address�. Because of the persistent interference by the first defendant, plaintiffs 2 and 3 demanded partition. As the conduct of the first defendant was hostile, the plaintiffs applied for documents pertaining to the suit schedule property and got the documents. They were surprised and shocked to know that the second defendant has taken sale deeds in respect of item Nos. 1, 2 and 3 of the plaint schedule. Plaintiffs 2 and 3, being daughters of Jayaramaiah, by virtue of the amendment to the Hindu Succession Act, Section 6 in particular, they are also co-parceners having equal share along with the son. Under these circumstances, plaintiffs have filed suit for partition and separate possession of their 1/3rd share each and for declaration that plaintiffs 1 to 3 are having charge over the suit schedule property towards life interest and maintenance and also sought for a decree declaring the sale deed as null and void as they have been obtained by fraud and for a relief of injunction.

Even after due service of summons on the defendants, they did not enter appearance and therefore they were placed ex parte . The plaintiffs were called upon to adduce evidence. The first plaintiff was examined as PW. 1. She has produced 17 documents which are marked as exhibits P. 1 to P. 17.

The trial Court on appreciation of the oral and documentary evidence on record held the plaintiffs have failed to establish that sale deeds Exs. P. 11, P. 12 and P. 13 were obtained by the second defendant as a document for security. It held they are all sale deeds executed for valid consideration and therefore, by virtue of the sale deeds, second defendant has become the owner of items 1 to 3 and plaintiffs or first defendant have no right to the said property. However, in respect of item No. 4 of the plaint schedule is concerned, it has decreed that the 1st plaintiff is entitled to 1/16th share and plaintiffs 2 and 3 are entitled to 1/4th +1/16th share each in suit item No. 4 property.

Aggrieved by the said judgment and decree of the trial Court, plaintiffs 1 to 3 are in appeal challenging the findings recorded by the trial Court in respect of item Nos. 1 to 3 of the plaint schedule and dismissing the suit in respect of the said items.

Learned counsel appearing for the appellants assailing the impugned judgment and decree contended, defendants have not filed any written statement contesting the claim. They did not cross examine PW. 1. They have not disputed any of the documentary evidence produced to substantiate the claim of the plaintiff. They also did not adduce any evidence. Under these circumstances, the trial Court committed a serious error in dismissing the suit of the plaintiffs in respect of items 1 to 3 on the ground that the plaintiffs have not established their case. He further contended as defendants have remained absent, they were placed ex parte. If the court feels there is no sufficient evidence to substantiate the claim of the plaintiffs, the judgment and decree of the trial Court could be set aside and the matter be remanded to the trial Court for fresh consideration giving the defendants the opportunity to contest the suit.

Per contra, learned counsel appearing for the second defendant submitted the sale deeds are executed for valuable consideration. Substantial payments are made. Plaintiffs 1 to 3 and the first defendant have duly executed the sale deeds agreeing to sell the properties. Therefore, it is too late in the day to contend that the documents executed by them are in the nature of document of security and not sale deed. The trial Court on appreciation of the evidence on record held that the plaintiffs have failed to establish their case and therefore, it is submitted that no case for interference is made out.

In the light of the aforesaid facts and rival contentions the point that arises for our consideration is:--

Whether exhibits P. 11, 12 and 13, the three sale deeds, duly executed by Jayaramaiah, plaintiffs 2 and 3 and the first defendant and which are duly registered, is vitiated as contended by the plaintiffs in the suit?�

As set out above, the allegations made in the plaint regarding the nature of transaction is too vague. Plaintiffs are conscious that three sale deeds have come into existence which are duly executed by Jayaramaih, plaintiffs 2 and 3 and the first defendant. The sale deeds are duly registered. Regarding consideration mentioned in the sale deed, substantial portion of which are paid by way of cheques and small portion is paid by way of cash. The sale deeds have come into existence at an undisputed point of time i.e. in 2005-06 that too when Jayaramiah was very much alive, hale and healthy. If the case of the plaintiffs is to be believed that Jayaramiah hails from an affluent family and was not in need of funds, pleadings show he was suffering from diseases and in fact he was operated in Wockhardt hospital and he died in the hospital in 2008. Further, plaintiffs have not adduced any evidence to show Jayaramaiah was in affluent circumstance, financially he was sound and he was in a position to spend huge amounts towards medical expenses and no documents are produced in this regard.

On the contrary it is submitted late Jayaramaiah and his family needed financial help. They did receive money from the second defendant. It was a loan transaction. Documents are executed as a security for due repayment of the said amount. Neither in the plaint nor in the evidence, amount of money received from the second defendant is forthcoming. The date on which the said amount is received is also not forthcoming. Similarly there is nothing to show that any attempt was made to repay the said amount. No documentary evidence is produced to show receipt of money, agreement to pay the said amount and the period within which the amount is to be repaid. When the plaintiffs sets up a case of financial accommodation and that the documents being executed as documents of security, the minimum that is required of the plaintiffs is to mention in the plaint and prove it by way of evidence the date of receipt of the amount, the total amount received, the documents which are executed as security for due repayment of amount. Further, if any amount is repaid, the date of such repayment or details of the agreement to repay the amount within the stipulated time, all these material particulars are not forthcoming either in the pleadings or in the evidence. It is not in dispute Jayaramaiah had executed the sale deeds. Along with him his two daughters, plaintiffs 2 and 3 have also executed the documents. The son-first defendant has also executed the documents. If the said property is a co-parcenary property, if plaintiffs 2 and 3 are treated as co-parceners along with the son, all the persons who have interest in the property i.e. all the co-parceners in the family have executed the sale deeds and got it duly registered. As the heir of late Jayaramaiah, the first plaintiff was an obstacle to the above said transaction and she has no personal knowledge about the transaction. Plaintiffs 2 and 3, who have executed the documents, who have personal knowledge about the circumstance under which the documents came to be executed and the consideration paid to them by the second defendant either before or after executing the documents, have not stepped into the witness box. It is they who are the competent witnesses to speak about the transaction. They are plaintiffs in the suit. For the reasons best known to them they have not done so. The evidence of the first plaintiff is of no use or assistance in establishing the case of execution of the document as security. Therefore, the trial Court on proper appreciation of the evidence on record rightly held the plaintiffs have not established their claim. In fact, the documents which are sought to be produced in support of the case, i.e. Ex. P. 1 the genealogical tree, Ex. P. 2 mutation register extract, Exs. P. 3 to P. 5 - RTC extracts, Exs. P. 6 and P. 7 - assessment extract, Ex. P. 8 - office copy of legal notice, Ex. P. 9 - postal receipt, Ex. P. 10 - RPAD cover, Exs. P. 11 to P. 13-CC of sale deed dated 13.2.2006, Exs. P. 14 to P. 16 - photographs and Ex. P. 17 - receipt issued by photo studio, do not to any extent prove the case of sale deeds being executed as a document of security which in turn was executed for due repayment of loan. More over the evidence in examination in chief by way of affidavit is nothing but a repetition of what is stated in the plaint. That is only pleading. No evidence worth consideration is stated in the affidavit. Therefore, when admittedly plaintiffs 2 and 3, first defendant and Jayaramaiah have executed the sale deeds and got it registered, and the sale deeds set out the consideration paid by way of cheque and cash and further when a sum of Rs. 30,00,000/- was received under Ex. P. 11, a sum of Rs. 15,00,000/- under Ex. P. 12 and 7,99,000/- is received under Ex. P. 13 in all amounting to Rs. 52,99,000/-, it is difficult to believe the case of the plaintiffs that the transaction is a void transaction and it has been executed as document of security and not out right sale. Therefore, we do not find any material to interfere with the well considered order passed by the Trial Court.

No merits. The appeal is dismissed.