R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO R.F.A.No.2379/2007 C/W R.F.A.No.1142/2006 IN RFA No.2379/2007:
BETWEEN:
MR. MOHAMMED HUSSAIN SON OF LATE MR.M.A.MOHAMMED AYOOB AGED ABOUT 42 YEARS RESIDING AT OUT WELCHENBERG 41517 BE TRIENEKENS GREVENBROCH GERMANY REPRESENTED BY HIS GPA HOLDER MR. ABDUL AZEEZ KHAN S/O LATE AKBAR KHAN, MAJOR.
...APPELLANT (BY SRI. G.L.VISHWANATH, ADVOCATE) AND:
1. MR. IRSHAD ALAM S/O LATE MR. M.A.MOHAMMED AYOOB SINCE DEAD BY LR’S 1(a) KHEMAR TAJ W/O IRSHAD ALAM AGED ABOUT 39 YEARS.
1(b) NADAR SHAH S/O IRSHAD ALAM AGED ABOUT 25 YEARS.
1(c) ANZAR SHAH S/O IRSHAD ALAM AGED ABOUT 23 YEARS.
1(d) SHARUKH SHAH S/O IRSHAD ALAM AGED ABOUT 18 YEARS.
ALL RESIDING AT:
No.2, MUNEGOWDA GARDEN NEELASANDRA BANGALORE-560 047.
2. MR. ASHRAF ALAM S/O LATE MR.M.A.MOHAMMED AYOOB AGED ABOUT 38 YEARS REPRESENTED BY HIS G.P.A.HOLDER SMT.M.A.SHAMEEM BEGUM RESIDING AT No.1, SOUTH CROSS STREET NEELASANDRA, BANGALORE-47.
3. MR. MAHE TILLAT D/O LATE. MR. M.A. MOHAMMED AYOOB AGED ABOUT 51 YEARS RESIDING AT No.29, NORTH STREET NEELASANDRA, BANGALORE-47.
4. MRS. M.A.SHAMEEM BEGUM D/O LATE MR. M.A. MOHAMMED AYOOB AGED ABOUT 48 YEARS RESIDING AT No.1, SOUTH CROSS STREET NEELASANDRA, BANGALORE-47.
5. MRS. MAHE JABEEN D/O LATE MR. M.A.MOHAMMED AYOOB AGED ABOUT 44 YEARS RESIDING AT RAMAKRISHNA GARDEN NEELASANDRA, BANGALORE-47.
6. MRS. MAHE MUBEEN D/O LATE MR. M.A. MOHAMMED AYOOB AGED ABOUT 40 YEARS RESIDING AT SOUTH CROSS STREET NEELASANDRA, BANGALORE-47.
...RESPONDENTS (BY SRI.CHITHAPPA, ADVOCATE FOR R1(a to d) AND R2 TO R6.) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:30.08.2007 PASSED IN OS.No.8253/1999 ON THE FILE OF THE I ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE (CCH-2) DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
IN RFA No.1142/2006: BETWEEN:
1. MR. J.MOHD.OOMAR S/O SRI JABBAR MOHD AGED ABUT 55 YEARS 2. MRS. M.A. SHAMEEM BEGUM W/O SRI J.MOHD.OOMAR AGED ABOUT 50 YEARS.
BOTH ARE R/AT OLD No.1 PRESENT No.3/7, SOUTH CROSS STREET NEELASANDRA BANGALORE-560 047. ...APPELLANTS (BY SRI. CHITHAPPA, ADVOCATE) AND:
MR. MOHAMMED HUSSAIN (ALIAS ASHFAQUE ALAM) SON OF MOHD. AYOOB AGED ABOUT 44 YEARS C/O NO.2, 3RD CROSS R.H.A.PENSION LANE GAUTAMPURAM, ULSOOR BANGALORE-08.
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MR. ABDUL AZEEZ KHAN S/O LATE. AKBAR KHAN AGED ABOUT 57 YEARS R/AT No.2, 3RD CROSS R.H.A.PENSION LANE GAUTAMPURAM, ULSOOR BANGALORE-08. ...RESPONDENT (BY SRI.G.L.VISHWANATH, ADVOCATE) THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:22.02.2006 PASSED IN O.S.No.5421/1998 ON THE FILE OF THE III ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE (CCH-25) DECREEING THE SUIT FOR POSSESSION.
THESE APPEALS COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT RFA 2379/2007 is directed against the judgment and decree dated 30.8.2007 passed by the Trial Court in O.S.8253/1999 wherein the suit filed for partition and separate possession and to declare that the ‘Release Deed’ alleged to have been executed by the plaintiffs in favour of the defendant namely Mohd. Hussain is null and void, is decreed.
RFA 1142/2006 is directed against the judgment and decree dated 22.2.2006 passed by the Trial Court in O.S.5421/1998 wherein the suit filed by Mohd.Hussain for possession is decreed.
2. The plaintiff, Mohd. Hussain in O.S.No.5421/1998 is the brother of defendant No.2 and defendant No.1 is the husband of defendant No.2.
The plaintiffs in O.S.8253/1999 are the siblings of Mohd. Hussain.
3. The parties involved in both the suits are family members and since these appeals are interconnected to each other, they are heard together and with the consent of the learned counsel appearing for the parties, the appeals are taken up for final hearing.
Regarding O.S.No.5421/1998 (RFA 1142/2006) 4. In O.S.No.5421/98 plaintiff Mohd.Hussain claims that the suit schedule property bearing No.3/7, South Cross Street, Neelasandra Bangalore 560047 measuring East to West 6.09 mtrs. and North to South 9.14 mtrs., under his ownership is acquired by his father. Defendant No.2 though is a sibling has nothing to do with the suit schedule property. He apprehends that the defendants are likely to deprive the plaintiff of his legal and legitimate right over the suit schedule property and also abuse the possession hence, he seeks recovery of vacant possession of the schedule property.
5. After issuance of suit summons, the defendants entered appearance and filed written statement denying the averments made in the plaint. They have contended that the plaintiff by himself is not the owner of the suit schedule property and the plaintiff has committed breach of trust in respect of the suit schedule property therein and also has misled them and the other siblings in getting the documents purported to be the Power of Attorney, release deed etc., and acted detrimental to the rights of all siblings which includes the defendant No.2 in the suit.
6. The issues that were framed for consideration are regarding the maintainability of the suit, entitlement of recovery of possession and sufficiency of court fee.
7. The trial Judge was accommodated with the oral evidence of PW-1 and PW-2 and documentary evidence in the form of Exhibits P-1 to P-13 on behalf plaintiff and oral evidence of DW-1 on behalf of defendants and no documentary evidence is marked on their behalf.
8. After hearing the parties, the learned Judge of the Trial Court decreed the suit in his favour.
Regarding O.S.8253/1999 (RFA 2379/2007) 9. O.S.No.8253/99 is filed by the plaintiffs – Irshad Alam and others, who are all the siblings including defendant No.1 in O.S.5421/1998 against Mohd. Hussain, who is the plaintiff in O.S.5421/1998 seeking for partition and separate possession and cancellation of release deed executed by the plaintiffs in favour of the defendant- Mohd. Hussain.
10. The claim of the plaintiffs is that themselves and Mohd. Hussain are the children of Late Mohd. Ayoob.
11. The said Mohd. Ayoob died on 8.8.1988 and his wife had predeceased him. The schedule property originally belonged to Mohd. Ayoob and after his death on 8.8.1988, it devolved upon his off springs who are the plaintiffs in the present suit and plaintiff and defendant No.2 in O.S.5421/1998.
12. The plaintiffs claim that they had reposed confidence with the defendant in respect of the suit schedule property and fully believing him and as their father Mohd. Ayoob was not feeling well, they executed various documents purported to be the Release Deed and Power Of Attorney for the proper management of the property and added to the fact that Mohd. Hussain is the only literate and conversant with the state of affairs.
13. The said Mohd. Hussain committed abuse of the trust and confidence reposed by the plaintiffs who are none other than his siblings and secured the Release Deed dated 26.8.1988 and has got the schedule property in his name through document of relinquishment which was never the intention of the plaintiffs therein to forego their undivided right therein.
14. After issuance of suit summons, the defendant entered appearance and filed written statement denying the averments made in the plaint. The defendant-Mohd. Hussain claims that on 20.8.1988, the schedule property was orally gifted to him by the plaintiffs which is termed as “Hiba” and recognized by personal law applicable to Muslims. Subsequently, on 26.8.1988, the property was gifted through a written gift in the lines of oral gift, and was executed by all the siblings in favour of Mohd. Hussain.
15. In a nutshell, the property belonged to Mohd. Ayoob, father of plaintiffs and defendant came to be gifted to the defendant-Mohd. Hussain who claims that he has became the owner of the property also by virtue of the fact that the relinquishment or Release Deed executed in his favour by his siblings, who are none other than defendant No.2 in O.S.5421/1998 and all the plaintiffs in O.S.8253/1999.
16. Defendant -Mohd.Hussain entered appearance and contended that the possession was handed over to Mrs.Shameen Begum, plaintiff No.4 in O.S.No.8253/1999 who also is defendant No.2 and defendant No.1 in O.S.5421/1998. However, they betrayed the confidence and faith that Mohd. Hussain had on them and committed breach of trust in respect of income from the schedule property therein.
17. The trial Judge was accommodated with the oral evidence of PW-1 and PW-2 and documentary evidence in the form of Exhibits P-1 to P-6 on behalf plaintiff and oral evidence of DW-1 and documentary evidence Exhibits D-1 to D-18 on behalf of defendant.
18. After hearing the parties, the learned Judge of the Trial Court decreed the suit.
19. Against the said judgment and decrees, both the parties preferred these appeals.
20. As the parties are related to each other, it becomes necessary for the sake of convenience to address them by name and relationship as well in accordance with the context.
21. Sri.G.L.Vishwanath, learned counsel appearing for Mohd. Hussain would submit that the plaintiffs in O.S.8253/1999 have played mischief and betrayed confidence of Mohd Hussain had over them. He further submits that Mohd. Hussain had taken up major responsibilities of maintaining the entire family and also incurred expenses for their growth and development and spent huge money in looking after his father himself and on behalf of other siblings and even took him to Germany where he was working and secured treatment to him. It is also stated that the father of Mohd. Hussain breathed last in Germany and even dead body was brought to India and all the medical expenses and subsequent expenses regarding transportation of dead body were borne by him. He further submits that the defendants had earlier transferred the entire schedule property through oral gift “Hiba” under the Mohammaden Law in favour of Mohd. Hussain and constituted him as full fledged owner and lawful possession of the same. It was further submitted that on 26.08.1998 the plaintiffs also have executed the written documents explaining the gift that was made orally on 20.8.1988. Further the plaintiffs in O.S.8253/1999 have executed full fledged registered release deed on 26.8.1988 in favour of Mohd. Hussain thereby released and relinquished all and even their undivided right, title and interest and possession in favour of defendant to constitute him as the sole, exclusive and absolute owner in possession of the suit schedule property.
22. It was also submitted that the plaintiffs executed a registered Power of Attorney in respect of the schedule properties on 26.08.1988 conferring powers to deal with the schedule property on behalf of the plaintiffs as well. Learned counsel would submit that the tone and tenor of the plaint in the second suit by the plaintiffs clearly suggest that they were in know of the terms of the registered Release deed through which they relinquished their undivided right, title, interest in favour of the defendant. Further the plaintiffs also technically admitted the execution of registered general power of attorney also. Learned counsel would further submit that though the gift was made on 20.08.1988 the animus and full fledged intention of the plaintiffs were to transfer what all the rights, interest they had in favour of the defendant. Similarly the Release deed and the general power of attorney were made in favour of the defendant which ensures that he enjoy possession and absolute ownership over the schedule properties. However rights and ownership and possession were already made in favour of the defendant. Learned counsel would further submit that earlier item No.2 of the schedule property was entrusted to defendant’s sister and her husband who are none other than defendants in the first suit. Due to betrayal and breach of trust, power of attorney what was given in favour of his brother-in-law was cancelled.
23. Learned counsel would submit that the possession of item No.2 of schedule property was ordered to be delivered by defendants in the first suit (Mohd. Hussain’s brother-in-law and sister) by virtue of Judgment and decree in the first suit. The documents were acted upon and possession was delivered. Learned counsel would submit that it is in this background that the schedule property item Nos.1 and 2 belonged exclusively to the said Mohammad Hussain, the defendant in the second suit and plaintiff in the first suit.
24. Learned counsel Sri Chittappa for defendants in the first suit and plaintiffs in the second suit represents the siblings of Mohd. Hussain, who are the plaintiffs in the first suit. Incidentally also represents defendant No.1 in the first suit.
25. Learned counsel would submit that the plaintiff in the first suit Mohd. Hussain has not acted in a loyal and affectionate way to the plaintiffs as the documents that were made in his favour were misused and he procured documents through unlawful manner by misusing documents executed by the plaintiffs in the second suit and defendant No.1 in the first suit by playing unethical. Learned counsel would further submit that the siblings had no intention of any kind to give away schedule property in favour of Mohd. Hussain. It was further submitted that admittedly the property that belonged to Mohd. Ayoob, the father of the parties was inherited by all of them as per the rules applicable under Mohammedan Law in the matter of intestate succession. Learned counsel would further submit that none of the contents of documents were made known to the plaintiffs and they were obtained by misrepresentation regard being had to the fact that general power of attorney dated 26.08.1988 or the release deed dated 26.08.1988 were registered but plaintiffs were kept in darkness about the contents, outcome and legal effect of the said documents. Learned counsel submits that the said Mohd. Hussain started claiming total and absolute ownership over the schedule property it was not in his name either through by any document or concurrence or consent of his siblings. Thus it is confirmed except like undivided share equal to any other son of Mohd. Ayoob had a share apart from that he had absolute rights over the schedule property. It was also submitted that another house property at No.1, situated at South Cross Street, Neelasandra, Bengaluru-47 that was sold by all the brothers and sisters to meet the medical expenditure and other expenditure on Mohd. Ayoob. Thus, total two items of schedule property as reflected in the second suit includes the plaint schedule property in the first suit.
26. Both the schedule property are liable to be partitioned among them and legal and absolute right of siblings of Mohd. Hussain are rightly upheld and confirmed by the trial court and submits that the said Judgment and decree in O.S.8253/99 is entitled to be confirmed and first suit of the defendant in O.S.5421/98 is liable to be dismissed.
27. It is further submitted by learned counsel G.L.Vishwanath that though the plaintiffs seek partition and separate possession of the schedule property their major grievance is that fraud was played on them but in the plaint, pleading of fraud is not in accordance with law. As per Rules 4 and 5 of order VI CPC, plaintiffs have failed to convince the kind of fraud or circumstances which were conducive by defendant to play fraud on them. It was further submitted that second suit was hopelessly barred by limitation as the defendant No.2 in the first suit is one of the siblings of the plaintiffs. She is also one of the plaintiffs (plaintiff No.4) in the second suit. Thus, on contextual reading what was defended in the first suit were urged in the second suit goes to show that parties were already having direct knowledge of the earlier proceedings, besides, the ownership of plaintiff Mohd. Hussain. Thus, deed which they are seeking for cancellation is dated 26.08.1988 and it could not have been urged for pleading partition in a suit of the year 1998.
28. In the context and circumstances of the case the first aspect is; parties are Mohammedan and are governed by personal law applicable to Mohammedans. The right in the beginning as claimed by the plaintiff-Mohd. Hussain is that the property was gifted on 20.08.1988 to him by his siblings. However it was oral. Oral gift is recognized in Mohammedan law provided essentials being delivery and possession and acceptance of the gift are completed. A written gift was also made by the same parties in favour of same Mohd. Hussain, the defendant in the second suit. In other words by the same donors to the same donee of the same subject matter. In the further circumstances of the case Mohd. Ayoob, the propositus died on 08.08.88 and exactly on the 13th day to his death oral gift came to be in existence regard being had to the fact written one came into existence on 26.08.88 five days after the oral gift.
29. It is the same day release deed and general power of attorney also came to be executed in favour of Mohd. Hussain the defendant in the second suit by the plaintiffs in the second suit. Both are registered on 26.08.1988. Incidentally the documents are said to have been executed in succession wherein release deed has been executed between 3 P.M. and 4 P.M. and power of attorney between 4 P.M. to 5 P.M. The substance of the release deed is that all and every right (admittedly undivided) came to be released in favour of Mohd. Hussain, the defendant. Both the documents are stated to have been executed in succession release deed being followed by general power of attorney dated 26.08.1988.
30. Insofar as release deed is concerned it constitutes Mohd. Hussain as full and absolute owner of both the item of properties. However second document general power of attorney confers power on Mohd. Hussain to represent his siblings to look after the property and represent them in litigations and even to sell. Gift is executed on 20.08.88 and written documents dated 26.08.88 by virtue of which Mohd. Hussain became the owner of the schedule property. Thus, execution of release deed was made on 26.08.1988 which was not necessary at the first instance and the reason being that execution of general power of attorney further deepens the confusion.
31. Thus, in sequence it means oral gift of 20.08.88 was followed by written gift dated 26.08.88 followed by registered release deed dated 26.08.88 that was followed by registered General Power of Attorney on the same day.
32. However learned counsel Sri.G.L.Vishwanath submitted the parties executed the deed in the circumstances to be abundantly cautious. Incidentally affidavits have also come into existence in the suit. Ex.D-3, D-7 to 11 are the affidavits sworn by siblings-plaintiffs in the second suit in favour of Mohd. Hussain the defendant in terms of the release what was effected in his favour. In other words endorsing or confirming the terms of Release Deed.
33. The conduct that is difficult to understand is when once the Release deed was effected in favour of the defendant Mohd. Hussain, immediately Power of Attorney also came to be registered, release deed between 3 P.M and 4 P.M and power of attorney between 4 P.M to 5 P.M. on 26.08.88. By virtue of execution of Release deed in favour of defendant- Mohd. Hussain nothing remained for the executant- plaintiffs. Under such circumstances absolutely there was no necessity for him to authorize his siblings to look after the schedule property.
34. In the context and circumstances of the case, the dates wherein several documents have come into existence are necessary to be noted as under:
(i) oral gift is stated to have been made by all the siblings in favour of Mohd. Hussain on 20.08.1988. Admittedly, no document;
(ii) Mohd. Hussain, defendant in the second suit also relies on Gift Deed being written on 26.8.1988 in the terms that the first instance of the marked as Ex.D4 which is executed before the notary on 29.8.1988 and the date is over written.
35. The enabling circumstances that existed for writing a written gift in addition to or in the alternative of the oral gift dated 20.8.1988 is not explained. However, it is claimed that 2nd document is not inconsistence with the first one.
36. Mohammedans under their personal law are entitled to gift away the property. In this connection oral gift is also permitted which has legal effect of transferring the ownership. Still Mohd. Hussain had in his wisdom to go for written Gift Deed.
37. The next document that is said to have come into existence is the Release Deed dated 26.8.1988 and the General Power of Attorney is dated same day. Incidentally, children of Mohd. Ayoob constituting the plaintiffs and defendants in the second suit had undivided right, title, interest and possession. This is admitted. Incidentally, both the documents are placed for registration on the same day i.e. on 26.8.1988. Here, it is very difficult to gauge the conduct and approach of Mohd. Hussain, the defendant in the second suit. If the interests of all the parties were to release undivided interest in two items of schedule properties and if they had released unequivocally in his favour where was the necessity of going for Power of Attorney to confer the power by the releasers in favour of Mohd. Hussain. If the intention under the first document were to be true and if he had become the owner of the schedule properties formed immoveable property stated to be situated in premium locality of city of Bengaluru. When the power of attorney was registered on the same day, subsequent to release deed it passes doubt and suspicion in many angles. It cannot be called oversight or error or abundant precaution. It is meaningless for a person to go in for a deed seeking authorization from the siblings in a power of attorney in respect of properties which has been released in favour of attorney. Thus, the defendant-Mohd. Hussain claims himself as owner- cum- attorney which are conflicting with each other.
38. The learned counsel would further submit that nothing wrong in having both the gifts and are not forbidden.
39. It is also a case wherein each intention, act followed by document of Mohd. Hussain is overlapping over the other and the subsequent documents gives technically opposite meaning over the previous one. For example, it is claimed that gift was made by all the children of Mohd. Ayoob in favour of Mohd. Hussain. Thus, he becomes the owner of the property by virtue of gift in the first instance whether could it be called abundant precaution he had gone for a written document on 26.8.1988 just 05 days after the oral gift. He also claims that he got khatha and other documents of the properties in this connection. Khatha and other documents of the properties are transferred in favour of Mohd. Hussain as per Ex.D13 in the suit. Incidentally, in Ex.D13, khatha endorsement is in favour of Mohd. Hussain. If this document were to be taken into consideration, nothing remained on 26.8.1988 for executing either Power of Attorney or Release Deed or general power of attorney. The defendant-Mohd. Hussain has gone on record by claiming ownership on the basis of the Gift Deed and in fact, the same khatha endorsement is stated to have been marked as Ex.P11 in HRC case which was relied upon by him to seek eviction of the then tenant from the schedule property. Thus, it is not only a mere abundant precaution or cautiousness in getting the Release Deed and Power of Attorney executed.
40. Insofar as the first suit is concerned, learned counsel Sri G.L.Viswanath appearing for the defendant in the second suit would submit that in the earlier case tenants residing in item No.1 of the schedule property were evicted by initiating proceedings in HRC and the said petition was allowed.
41. Insofar as verbatim of the Gift Deed, Ex.D4 is concerned, it is stated to have been made for consideration in the form of hospitality and expenditure incurred by Mohd. Hussain towards their father Mohd. Ayoob who was taken to Germany for treatment, but he breathed last there itself. However that is not the case pleaded by the defendant Mohd. Hussain.
42. Insofar as Release Deed is concerned, as stated above, that came to be registered at the first instance. The same verbatim is applied therein. It is not explained as to what was the consideration. The terms of Gift Deed continues in the Release Deed. The consideration is love and affection. It is necessary to demark between effect of succession under the Hindu Law or that of Mohammedan Law, no one can claim to be legal heir under life time of the owner, under both the laws. There is no concept of kartha, joint family and its properties, separate properties hotch pot of the joint family in Mohammedan Law and when a person dies, funeral expenditure, debts, Mahr amount payable to the widow, the rest is inherited by the heirs consisting of sharers, residuaries, distant kinder insofar as remaining property is concerned. On such consideration, the Release Deed which is placed before the Court claiming transfer of ownership of the property from all the siblings in favour of Mohd. Hussain assumes significance for the abnormalities.
43. Now the entire documents, conduct and instances are to be read with cummulative effect. Insofar as succession in this property is concerned, there was no question of pre-existing rights either to the plaintiffs or the defendants during the life time of Mohd. Ayoob. The date of making oral gift in his favour is 20.08.1988 as claimed by the defendant Mohd. Hussain in the second suit.
44. The date of death of Mohd. Ayoob is stated to be on 08.08.1988 and his dead body was brought from Germany. This oral gift came into existence on the 12th day to the death of Mohd. Ayoob. Further, after 05 days, the same oral gift takes shape of a written gift. Meanwhile, the gift is acted upon as stated above Mohd. Hussain went on projecting himself as the owner of the property even while seeking eviction, he claims that he has inherited the property from his father. If the gift was effected on 26.08.1988 the very fact of execution of Release Deed in favour of Mohd. Hussain undoubtedly establish that the Gift Deed was not acted upon or the gift, whether oral or in writing was not countable. They had no legal force either far or against the plaintiff or defendants, because Release Deed is the document relied upon by the defendant- Mohd. Hussain.
45. Insofar as the affidavits are concerned, they are said to have been sworn by the plaintiffs in the second suit and in terms of the Release Deed or Gift Deed. All the plaintiffs in the suit in chorus claimed that the defendant- Mohd. Hussain is the only literate in the family and aquatinted with outside transaction and others are not that much matured. This claim of the plaintiffs is fortified from the series of transactions and documents.
46. Insofar as Gift Deed is concerned, first according to Mohd. Hussain his siblings in stroke wished and consented for gifting the property to him when the memories of their father was hardly on the 12th day to his death. Further, within six days, they executed a written Gift Deed. Again affidavits of all the plaintiffs to ensure that the gift was made and Mohd. Hussain was generous and kind to all the siblings and hence, the gift was made. Upto the date of registration of the Release Deed, every transaction and documents are claimed to have been executed by the defendants. In the peculiar circumstances of the case, it is only one aspect that all were freely happened in favour of Mohd. Hussain and role of his siblings is that they were mere pawns in the hands of the former. Thus it stood as well that plaintiffs are ready and willing to come and sign the documents whether, it is a Gift Deed or Release Deed or Affidavits or Power of Attorney or in the guise of execution of deeds also. It was also submitted, more particularly, at the time of registration of the Release Deed, Power of Attorney was also ready. As a matter of fact, the registration is stated to have happened at 3 to 4 P.M. insofar as Release Deed is concerned on 26.8.1988 and the Power of Attorney on the very same day between 4 to 5 p.m one hour later. Thus, this is a peculiar circumstance wherein each transaction is diagonally opposite to the subsequent transaction. It is expected from Mohd. Hussain to explain as to why and how these two documents generated.
47. Learned counsel Sri. G.L.Viswanath would submit that the first suit is filed by Mohd. Hussain for recovery of possession of property against defendants 1 and 2. More particularly, defendant No.2 is his natural sister. The judgment and decree passed in suit wherein recovery of possession was ordered is placed on record, wherein the defendant 1 and 2 i.e. sister and brother-in-law of Mohd. Hussain were directed to deliver the possession of the property to the plaintiff therein. In the said suit, plaintiff claims himself as the absolute owner of the schedule property bearing No.3/7. It is stated that plaintiff appointed defendant No.1 (brother-in-law) as attorney and there has been abuse of position and also the documents and the income received from the property because of which, power of attorney was cancelled and as the defendants dispossessed him from the schedule property, recovery of possession was sought. This suit, incidentally, was filed on 13.7.1988 which came to be decreed on 22.2.2006. It is in this background filing of subsequent suit on 8.8.2011 was questioned. Mohd. Hussain, the defendant in the second suit questions the very purpose of filing of the subsequent suit as in previous suit possession was not questioned.
48. The question is whether there is bar for filing subsequent suit. In this connection, it is made clear that defendants in the first suit are sister and brother- in- law who were stated to have been given possession. They were authorized to manage and to look after the schedule property therein and there were certain mis-appropriation and abuse of position, hence, the Power of Attorney was cancelled and suit was filed. Regard being had to the fact that the said suit was also decreed. The facts remain that insofar as to execute the power of attorney is concerned, in this connection Mohd. Hussain would have executed the Power of Attorney only to the extent of his share if the same was asserted and identified. But he claimed the entire schedule property as his own. Further, the other defendants were limited to his sister and her husband. The entire branch of family members cannot be excluded from their right or informed in the present suit regarding their right if any.
49. In this connection, learned counsel for plaintiffs in the second suit (O.S.NO.8253/1999) Sri. Chittappa would submit that the plaintiffs came to know about the claim of the defendant as the full owner only when they received notice as per Ex.D16- Legal Notice (in OS No.8253/1999). Insofar as change of khatha of the property, admittedly, was made on 27.4.1993. The portion of the Release Deed marked as Ex.D2 (Page No.2), which is as under:
“ .. in discharge of all the family responsibilities and obligations and also in acquiring schedule properties in favour of our father, which have become joint properties of all the parties herein, after the death of our father. The said Releasee Sri. M.A. Mohammed Hussain took our father to West Germany for treatment who expired on 08-08-1988, whose body was brought by the Releasee to Bangalore, India, for last rights. The releasee also helped each one of us to set up in life and in all matters so far.”
50. As pointed out earlier, the Release Deed is in respect of release of property with reference to conveying of undivided interest differs from that of Hindu Law and Mohammedan Law.
51. The succession is per branch by the class I heirs, class to II shares so on under Hindu law, whereas sharers, residuaries distant kinder under Mohammedan law. On the reading of the entire document, it does not throw light as to whether value of the shares of the releasers- siblings, whether they received any consideration. If the release deed dated 26.08.1988 is to be considered, it becomes a stale and waste document in the presence of the subsequent registered general power of attorney executed subsequently.
52. Gift has the effect of transfer of ownership over property gifted. Every subsequent step of the plaintiff is opposite to the previous one.
53. The inference that could be drawn in the light of the documents, wherein the previous one is diagonally opposite to subsequent and that the intention of Mohd. Hussain-defendant in the second suit is not only bad and also not acceptable.
54. Insofar as vitiating of a document on the ground of fraud, undue influence, mistake or mis- representation, coercion, the consent of parties to a document is supposed to be free from coercion. If it is without consent the aggrieved party seeks for setting aside the document on which it is claimed that fraud was played. In this connection, the intention of defendant-Mohd. Hussain that his siblings have sought for cancellation of Release Deed and have not established fraud and misrepresentation to inspire confidence of this Court. It is necessary to mention Rules 4 and 5 of Order 6 of CPC which are as under:
“4. Particulars to be give where necessary.- 2(1) 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 and items if necessary) shall be stated in the pleading.
5. Further and better statement, or particulars.-1[(1)] A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, may in all cases be ordered, upon such terms, as to costs and otherwise, as may be just.
[(2) In a suit for infringement of a trade mark or copyright, the Court may, either on its own motion or on the application of any party, apply the provision of sub-rule(2) of Rule 4 of this Order so far as the circumstances of the case may allow.]”
And also in respect of free consent, coercion and undue influence, fraud and misrepresentation as mentioned under Sections 13 to 18 of the Indian Contract Act 1872 which read as under:
“13. ‘Consent’ defined.—Two or more persons are said to consent when they agree upon the same thing in the same sense. — Two or more persons are said to consent when they agree upon the same thing in the same sense."
14. ‘Free consent’ defined.—Consent is said to be free when it is not caused by— — Consent is said to be free when it is not caused by—"
(1) coercion, as defined in section 15, or (2) undue influence, as defined in section 16, or (3) fraud, as defined in section 17, or (4) misrepresentation, as defined in section 18, or (5) mistake, subject to the provisions of sections 20, 21 and 22. Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation or mistake.
15. ‘Coercion’ defined.—‘Coercion’ is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement. —‘Coercion’ is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement." Explanation.—It is immaterial whether the Indian Penal Code (45 of 1860) is or is not in force in the place where the coercion is employed. Illustrations A, on board an English ship on the high seas, causes B to enter into an agreement by an act amounting to criminal intimidation under the Indian Penal Code (45 of 1860). A afterwards sues B for breach of contract at Calcutta. A afterwards sues B for breach of contract at Calcutta." A has employed coercion, although his act is not an offence by the law of England, and although section 506 of the Indian Penal Code (45 of 1860) was not in force at the time when or place where the act was done. A has employed coercion, although his act is not an offence by the law of England, and although section 506 of the Indian Penal Code (45 of 1860) was not in force at the time when or place where the act was done."
6 [16. ‘Undue influence’ defined.— (1) A contract is said to be induced by ‘undue influence’ where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. 1[16. ‘Undue influence’ defined.—(1) A contract is said to be induced by ‘undue influence’ where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other."
(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another— (a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or (b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other. Nothing in the sub-section shall affect the provisions of section 111 of the Indian Evidence Act, 1872 (1 of 1872). Illustrations (a) A having advanced money to his son, B, during his minority, upon B’s coming of age obtains, by misuse of parental influence, a bond from B for a greater amount than the sum due in respect of the advance. A employs undue influence. (a) A having advanced money to his son, B, during his minority, upon B’s coming of age obtains, by misuse of parental influence, a bond from B for a greater amount than the sum due in respect of the advance. A employs undue influence."
(b) A, a man enfeebled by disease or age, is induced, by B’s influence over him as his medical attendant, to agree to pay B an unreasonable sum for his professional services, B employs undue influence. (b) A, a man enfeebled by disease or age, is induced, by B’s influence over him as his medical attendant, to agree to pay B an unreasonable sum for his professional services, B employs undue influence."
(c) A, being in debt to B, the money-lender of his village, contracts a fresh loan on terms which appear to be unconscionable. It lies on B to prove that the contract was not induced by undue influence. (c) A, being in debt to B, the money-lender of his village, contracts a fresh loan on terms which appear to be unconscionable. It lies on B to prove that the contract was not induced by undue influence."
(d) A applies to a banker for a loan at a time when there is stringency in the money market. The banker declines to make the loan except at an unusually high rate of interest. A accepts the loan on these terms. This is a transaction in the ordinary course of business, and the contract is not induced by undue influence.] (d) A applies to a banker for a loan at a time when there is stringency in the money market. The banker declines to make the loan except at an unusually high rate of interest. A accepts the loan on these terms. This is a transaction in the ordinary course of business, and the contract is not induced by undue influence.]"
17. ‘Fraud’ defined.—‘Fraud’ means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent1, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:— — ‘Fraud’ means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent1, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract\:—"
(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it;
(4) any other act fitted to deceive;
(5) any such act or omission as the law specially declares to be fraudulent. Explanation.—Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak2, or unless his silence, is, in itself, equivalent to speech. Illustrations (a) A sells, by auction, to B, a horse which A knows to be unsound. A says nothing to B about the horse’s unsoundness. This is not fraud in A. (a) A sells, by auction, to B, a horse which A knows to be unsound. A says nothing to B about the horse’s unsoundness. This is not fraud in A."
(b) B is A’s daughter and has just come of age. Here the relation between the parties would make it A’s duty to tell B if the horse is unsound. (b) B is A’s daughter and has just come of age. Here the relation between the parties would make it A’s duty to tell B if the horse is unsound."
(c) B says to A—‘‘If you do not deny it, I shall assume that the horse is sound”. A says nothing. Here, A’s silence is equivalent to speech. (c) B says to A—‘‘If you do not deny it, I shall assume that the horse is sound”. A says nothing. Here, A’s silence is equivalent to speech."
(d) A and B, being traders, enter upon a contract. A has private information of a change in prices which would affect B’s willingness to proceed with the contract. A is not bound to inform B. (d) A and B, being traders, enter upon a contract. A has private information of a change in prices which would affect B’s willingness to proceed with the contract. A is not bound to inform B."
18.“Misrepresentation” defined.— “Misrepresentation” means and includes— — “Misrepresentation” means and includes—"
(1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;
(2) any breach of duty which, without an intent to deceive, gains an advantage of the person committing it, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him;
(3) causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement.”
55. In the circumstances what has surfaced is that Mohd. Hussain who is the plaintiff in the first suit and the defendant in the second was definitely in a position to dominate the will of his brothers and sisters named as defendant No.2 in the first suit and all the plaintiffs in the second suit. The former controlled the latter to the optimum level by virtue of his capacity to dominate them under his will.
56. Further he utilized his all capabilities and opportunities to dominate his siblings to render no concern for them. It was their helplessness and belief in Mohd. Hussain made them to be at the back and on the call of Mohd. Hussain signed all and every documents in respect of the schedule property. Mohd. Hussain left no stone unturned and ensured that his siblings are maintained constantly in a state of blindfoldedness. Whatever the document that he desired from his siblings were obtained effortlessly and in a whisker.
57. The defendant-Mohd. Hussain in the second suit claims possession over the schedule property through Oral Gift, Written Gift, Release Deed and also Power of attorney done under one transaction is undone under the next one. For example, the effect of gift dated 26.8.1988 gets undone with Release Deed gets diluted to loose its recognition through the registered documents dated 26.8.1988 stated to have been effected between 3 to 4 p.m. on 26.8.1988 the effect of Release Deed gets dissolved through the power of attorney executed on the same day i.e. on 26.8.1988, but the time being between 4 to 5 p.m., the legal effect of Power of Attorney totally diluted through the Gift Deed dated 26.8.1988.
58. Be it oral or the Gift Deed dated 26.8.1988, Release Deed dated 26.8.1988 and General Power of Attorney on the same day are nothing but destructive pleadings, as one goes against the other. The documents gift deed, power of attorney release deed, affidavits only prove that well prepared plan of the defendant in the second suit. Further he has succeeded in the project against the plaintiff No.1 to play misrepresentation, fraud and undue influence.
59. The plaintiffs in the second suit were ready and willing to execute all the documents be it gift or release power of attorney affidavits etc. Regard being had to the fact that the said plaintiffs do not had any intention of parting with any right, title, possession over the schedule property.
60. When everything was over by Release Deed there was no occasion for going for the Gift. So this happened on the basis of the defendant acts as he wanted to ensure that the plaintiffs-siblings are blocked in all the angles and made them to execute deeds according to his mandate. Accordingly, series of documents came into existence. Mohd. Hussain is the unlawful gainer and his siblings were at the receiving end.
61. Insofar as fraud or mis-representation are concerned, it was the submission of the learned counsel for the defendant in the second suit that execution of Release Deed is admitted. On factual narration, pleadings, evidence, the plaintiffs do say that Release Deed has come into existence and they never intended. Yes, in order to explain the fraud that was played on them, the details are to be explained in accordance with Rules 4 and 5 of Order VI of CPC.
62. The very concept of mis- representation or fraud or undue influence coming into existence when the beneficial party is in position to dominate the will of another, as observed by me above, the series of documents explain themselves the circumstances under which they came into existence. Fraud or mis- representation or undue influence or coercion need not be explained in volumes. If the series or lame incidents happened being admitted or established have the cumulative effect of establishing the fraud or coercion or undue influence in obtaining documents creating interest or title in the properties it is sufficient the evidence must inspire confidence to conclude without any doubt that Mohd. Hussain, the plaintiff in the first suit and defendant in the second suit successfully victimized his siblings consisting defendant No.2 in the first suit and all the plaintiffs in the second suit for the said deeds executed in his favour.
63. The plaintiffs had good knowledge about the confidence and trust which were clearly encashed by the defendant. Plaintiffs knew one aspect of believing the defendant and reposed maximum confidence. They had no doubt or suspicion on him. The plaintiff in the second suit executed each and every documents consisting of oral gift, general power of attorney, release deed, affidavits etc.
64. The plaintiffs have established that the defendant- Mohd. Hussain was better equipped with knowledge of resource. The plaintiffs (siblings) believed him.
65. The fraud and undue influence vitiates the very documents which come to the head of gift do not create right. Further not only the circumstances, fraudulent or deceitful maligns the rights of the party to dislodge his rights.
66. It is not only through pleading that fraud or deceit was played on the aggrieved party but undue influence, fraud and deceit can be concluded by the series of facts and they have equal efficiency.
67. Learned counsel for appellant in RFA No.2379/2007 relied on the following decisions:
(i) Thayyil Mammo and Another Vs. Kottiah Ramunni and others - AIR 1966 SC 337;
(ii) Kuppuswami Chettiar Vs. ASPA Arumugam Chettiar and others – AIR 1967 SC 1395;
(iii) Bishnudeo Narain and Another Vs. Seiogeni Rani and others – AIR 1951 SC 280;
(iv) K.S.Mariyappa Vs. K.T. Sidalinga Setty – ILR 1989 Karnataka 425;
(v) Ranganayakamma Vs. K.S. Prakash – AIR 2005 Karnataka 426;
(vi) Kenchavva Vs. Amogananda and others – AIR 2003 Karnataka 434.
68. Learned counsel for respondent has relied on the decision of this Court in the case of Mohammad Ghayasulla Vs. H. Asadulla Shariff – Laws (Kar) 2010 9 30.
69. Insofar as first suit is concerned, it is not a comprehensive suit. On the other hand, plaintiff Mohd. Hussain claimed that he is full owner of the suit schedule property and seeks recovery of possession of the schedule property. The second suit is for partition and it is comprehensive in nature.
70. It was submitted by learned counsel Sri G.L.Vishwanath for Mohd. Hussain, defendant in second suit that the trial Judge has not discussed about the Judgment in the previous suit but comprehensive or complete suit for partition being second one parties are getting their rights and liabilities adjudicated. I find the Release Deed or Power of Attorney or the Hiba if came into existence under the circumstances for wrong reasons, their execution or coming into existence was caused by misrepresentation, fraud, undue-influence by Mohd. Hussain, the plaintiff in the first suit and defendant in second suit. The aspect of fraud, mis-representation or undue influence are res ispa loquitur, they existed in by circumstances, utilization of timings, position and relationship by the defendant-Mohd. Hussain. The execution of the said documents defendant No.2 in the first suit and all the plaintiffs in the second suit have suffered due to no fault of them.
71. There is no valid and genuine consent by the plaintiffs in O.S.8253/99 for oral gift dated 20.08.1988, written gift deed dated 26.08.88 release deed dated 26.08.1988 and registered power of attorney dated 26.08.1988. The affidavits obtained by defendant-Mohd. Hussain have no sanctity. They are obtained by mis-representation, fraud and exercising undue influence. The very existence of the gift deed dated 26.08.88, release deed and power of attorney and the affidavits are injurious to the undivided right, title in favour of the plaintiffs in O.S.8253/99 and they are liable to be set aside and accordingly they are set aside.
72. I find the judgment and decree dated 30/08/2007 passed by the trial Judge in O.S.No.8253/1999 is fit to be confirmed as it is neither infirm nor irregular or liable to be set aside. Hence, RFA No.2379/2007 has no legs to stand. Accordingly, it is dismissed with costs.
By virtue of dismissal of appeal in RFA No. 2379/2007, the appeal in RFA No.1142/2006 is allowed.
Accordingly, the judgment and decree dated 22/02/2006 passed by the trial Judge in O.S.No. 5421/1998 is hereby set aside. Consequently, suit is dismissed.
Sd/- JUDGE DM/SBN/tsn*