S VENKATASWAMY v. COURT OF KARNATAKA

Judgment

#1. S VENKATASWAMY S/O LATE SIDDAPPA SINCE DEAD BY HIS LRS 1(A) S.VENKATALAKSHMI W/O LATE S.VENKATASWAMY AGED ABOUT: 62 YEARS 1(B) LEELAVATHI S R Location: HIGH COURT OF KARNATAKA B.V.SUMITHRA D/O LATE S.VENKATASWAMY AGED ABOUT:40 YEARS BOTH R/AT NO.4, OLD NO.38 1ST MAIN, “C” STREET, MYSURU ROAD, NEW GUDDADAHALLI, BENGALURU – 560 026. (BY SRI. SRINIVASA K., ADVOCATE) ...APPELLANTS - 2 - NC: 2024:KHC:47166 RFA No. 204 of 2020 AND:

#2. S. ASWATH S/O SIDDAPPA AGED ABOUT 72 YEARS R/A NO.284, 15TH “A” CROSS CHIKKABOMMASANDRA CROSS ”A” SECTOR YELAHANKA NEW TOWN BANGALORE – 4 S KRISHNAPPA S/O SIDDAPPA AGED ABOUT 66 YEARS R/A 0508 KHB PLATINUM APARTMENTS KHB APARTMENT, SHIRKE CIRCLE KENGERI SATLATE TOWN BANGALORE – 560 060. (BY SRI. M.M. ASHOKA., ADV. FOR R1 & R2) ...RESPONDENTS THIS REGULAR FIRST APPEAL FILED UNDER SEC.96 OF CPC., PRAYING TO CALL FOR THE RECORDS IN O.S.NO.7332/2015, ON THE FILE OF THE VII ADDITIONAL CITY CIVIL JUDGE, AND SESSIONS JUDGE AT BANGALORE (CCH-19) AND SET ASIDE THE JUDGMENT AND DECREE DATED 31.10.2019 BY ALLOWING THE REGULAR FIRST APPEAL AS PRAYED FOR IN THE ENDS OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR - 3 - NC: 2024:KHC:47166 RFA No. 204 of 2020 JUDGMENT This appeal

defendant O.S.No.7332/2015 is directed against the impugned judgment and decree dated 31.10.2019 passed by the VII Addl. City Civil and Sessions Judge, Bangalore, whereby the said suit filed by the respondents – plaintiffs for declaration, permanent injunction and other reliefs was decreed by the trial court in favour of the respondents – plaintiffs against the appellant – defendant.

#2. Brief facts giving rise to the present appeal are as under:- The appellant and respondents are brothers, all of them being the children of late Siddappa who died long back. They had two other brothers Shankar and Raju and the joint family comprising of the appellants, respondents and their two brothers owned and possessed joint family properties. The aforesaid Shankar, brother of the appellant respondents herein instituted a O.S.No.5032/1980 against their brothers viz., S.Raju (1st - 4 - NC: 2024:KHC:47166 RFA No. 204 of 2020 defendant), Venkataswamy (2nd defendant), Ashwath (3rd defendant) and Krishnappa (4th defendant) in the said suit. The schedule properties said O.S. No.5032/1980 comprised of A, B and C schedule properties. A compromise petition was filed in the said suit between the parties culminating in a compromise decree dated 10.12.1981. As per the terms and conditions of the compromise decree, the B and C schedule properties were allotted exclusively to the joint share of Raju and Venkataswamy – defendants 1 and 2 in the said suit and the plaintiff – Shankar and defendants 3 and 4 - Ashwath and Krishnappa relinquished and abandoned their claim over the B and C schedule properties. The compromise decree also stipulated that insofar as A schedule properties are concerned, all the 5 brothers i.e., plaintiffs and defendants 1 to 4 would be entitled to 1/5th share each in the A schedule property.

2.1. Subsequently, the defendants 3 and 4 in O.S.No.5032/2018 i.e., Ashwath and Krishnappa executed - 5 - NC: 2024:KHC:47166 RFA No. 204 of 2020 a release deed dated 05.03.2011 relinquishing their undivided 1/5th share each in favour of 2nd defendant – Krishnappa. On 03.06.2015, the plaintiff – Shankar instituted final decree proceedings in FDP No.62/2015 to enforce and implement the compromise decree passed in O.S.No.5032/2018 only in relation to schedule ‘A’ property. So also, the defendants 3 and 4 - Ashwath and Krishnappa instituted the instant suit in O.S.No.7332/2015 against Venkataswamy for declaration that the registered release deed dated 05.03.2011 in his favour was null and void as having been obtained by playing fraud, coercion, influence and misrepresentation consequential partition of their alleged 1/5th share in the ‘A’ schedule property and for other reliefs. The said suit was contested by Venkataswamy - the sole defendant who filed his written statement, pursuant to which, the following issues were framed.

#1. Whether the plaintiffs prove that the Release Deed dated 05.03.2011 is obtained by Defendant by playing fraud, coercion, undue influence and - 6 - NC: 2024:KHC:47166 RFA No. 204 of 2020 misrepresenting the facts and as such it is null and void?

#2. Whether the plaintiffs prove that they are entitled for 1/5th share each in the suit schedule property compromise decree passed O.S.No.5032/1980 dated 12.02.1982?

#3. Whether Defendant proves that the valuation made and Court fee paid by the Plaintiffs is incorrect?

#4. Whether Plaintiffs prove that they are entitled for the relief of declaration as sought?

#5. Whether Plaintiffs prove that they are entitled for possession of 1/5th share each in the suit schedule property as sought?

#6. What Order or decree?

#3. Both the plaintiffs examined themselves as PWs 1 and 2 and Exs.P1 to P9 were marked on their behalf. The defendant examined his wife / GPA holder as DW-1 and Exs.D1 to D5 were marked on his behalf. After hearing the parties, the trial court upheld the claim of the plaintiffs and rejected the defence of the defendant and decreed the suit by passing the impugned judgment and decree which is assailed in the present appeal. - 7 - NC: 2024:KHC:47166 RFA No. 204 of 2020

#4. Heard learned counsel for the parties and perused the material on record.

#5. For the purpose of convenience, the parties are referred to by their respective ranks in the suit in O.S.No.7332/2015 i.e., the appellant herein referred to as the defendant, while the respondents herein are referred to as the plaintiffs in the present judgment.

#6. The following points arise for consideration in the present appeal; (i) Whether the trial court was justified in holding that the registered release deed dated 05.03.2011 executed by the plaintiffs in favour of the defendant was obtained by playing fraud, coercion, defendant? influence and misrepresentation by (ii) Whether the impugned judgment and court warrants decree passed by interference in the present appeal?

#7. Since both the points are interlinked with each other, they are taken up together for consideration. - 8 - NC: 2024:KHC:47166 RFA No. 204 of 2020 Re-Point Nos.1 and 2:-

#8. A perusal of the material on record will indicate that it is the specific contention of the plaintiffs that the appellant – defendant Venkataswamy obtained a released deed dated 05.03.2011 from the respondents – plaintiffs by playing fraud, coercion, undue influence and misrepresentation.

8.1 In this context, it is well settled that for the purpose of examining of plea of fraud, misrepresentation, coercion etc., is absolutely incumbent upon the respondents – plaintiffs to put forth detailed necessary material particulars in the pleadings by furnishing all necessary details regarding the commission of the said act by the plaintiffs; in the instant case, a bare perusal of the plaint averments will indicate that the same do not measure up to the standard / level of pleadings mandatorily required for the purpose of annulling the registered release deed as mandatorily required under Order 6 Rule 4 CPC. While dealing with the said contention - 9 - NC: 2024:KHC:47166 RFA No. 204 of 2020 urged by the appellants – defendant, the trial court has not only glossed over the aforesaid statutory / mandatory legal requirement but has come to the erroneous conclusion respondents – plaintiffs had established their aforesaid contention regarding fraud, coercion, undue influence and misrepresentation by placing reliance upon extraneous and irrelevant consideration without appreciating that in the absence of necessary / relevant material particulars / details, it was impermissible to consider / countenance such pleas put forth by the plaintiffs as held by the Apex Court in the case of Electro Steel Castings vs. UV Asset Reconstruction Co, Ltd., - (2022) 2 SCC 573, wherein the Apex Court reiterated the principles laid down in earlier judgments. Under these circumstances, I am of the considered opinion that the impugned judgment and decree passed by the trial court deserves to be set aside.

8.2 The trial court also failed to consider and appreciate the well settled principle of law that in the - 10 - NC: 2024:KHC:47166 RFA No. 204 of 2020 absence of necessary / adequate pleadings, no amount of evidence can be looked into by the court; in the instant case, as stated supra, there was complete / total inadequacy of material pleadings and details and in the absence of which, any amount of evidence adduced by the respondents – plaintiffs cannot be relied upon by them in support of their plea of fraud, coercion, undue influence and misrepresentation and consequently, the impugned judgment and decree passed by the trial court deserves to be set aside on this ground also. In the case of Bachhaj Nahar vs. Nilima Mandal – (2008) 17 SCC 491, the Apex Court has held that without pleading, no amount of evidence can be looked into which is permissible only in exceptional cases, if the Court is satisfied that the pleadings and issues generally cover the case; as stated supra, having regard to the specious plea of fraud, coercion, misrepresentation and undue influence, mandatory material particulars in support of the said pleadings were required to be put forth by the respondents – plaintiffs, in the absence of which, no amount of - 11 - NC: 2024:KHC:47166 RFA No. 204 of 2020 evidence can be looked into and failure on the part of the trial court to appreciate this, has resulted in erroneous conclusion.

8.3 The trial court failed to consider and appreciate the material on record which clearly indicated that the respondents – plaintiffs who sought to assail the registered release deed dated 05.03.2011 were unsure about their claim; in this context, it is relevant to state that it is well settled that pleas of fraud, coercion, undue influence and misrepresentation, has not only inconsistent and contradictory to one another, but are also mutually destructive to each other; to put it differently, the plea of the respondents – plaintiffs that the release deed dated

05.03.2011 was obtained by fraud is mutually destructive to the plea also put forth by them that the said release deed was obtained by coercion which was in turn inconsistent and mutually destructive to the pleas of undue influence and misrepresentation; there is no gainsaying the fact that principles underlined fraud, - 12 - NC: 2024:KHC:47166 RFA No. 204 of 2020 coercion, undue influence and misrepresentation as contemplated under Sections 13 to 19-A of the Indian Contract Act, are mutually exclusive from one another and it is not permissible for a party to take up all the pleas together.

8.4 As stated supra, the respondents – plaintiffs who are completely / totally unsure / unclear as to on what grounds they seek to nullify the registered release deed have not been successful in establishing the said mutually destructive pleas as held by the Apex Court in the case of Goutham Sarup vs. Leela Jetly – (2008) 7 SCC 85. Under these circumstances also, the trial court clearly erred in upholding the claim of the respondents – plaintiffs which was liable to be rejected.

8.5 The trial court also committed an error in drawing adverse inference against the appellant – defendant for not entering or stepping into the witness box to give evidence on the ground that his wife, DW-1 was not competent to depose / testify on his behalf. In this - 13 - NC: 2024:KHC:47166 RFA No. 204 of 2020 context, the trial court failed to appreciate that in the light of Section 120 of the Indian Evidence Act, one spouse is competent to give evidence on behalf of the other spouse and failure to appreciate this has resulted in erroneous conclusion.

8.6 As can be seen from the aforesaid judgment, if it was permissible for DW-1, wife of the appellant – defendant to give evidence on his behalf even without a GPA and having regard to the undisputed fact that the appellant – defendant was aged about 88 years, the trial court fell in error in drawing adverse inference against the appellant – defendant for not examining himself; in any event, in the absence of any discrepancy or ambiguity in the evidence of DW-1 - wife of the appellant, the trial court clearly erred in rejecting her evidence and consequently, even this finding recorded by the trial court deserves to be set aside.

8.7 The trial court also committed an error in wrongly casting the burden of proving the release deed - 14 - NC: 2024:KHC:47166 RFA No. 204 of 2020 dated 05.03.2011 on the appellant – defendant and not on the respondents – plaintiffs. In this regard, apart from the fact that issue Nos.1, 2, 4 and 5 completely cast the burden of proving fraud, coercion, undue influence and misrepresentation upon the respondents – plaintiffs, in the light of the settled position of law that the burden of proving fraud, undue influence etc., is on the person asserting / alleging so, it was absolutely essential that the respondents – plaintiffs adduced legal and acceptable evidence which they had not discharged and in the light of judgment of the Apex Court in the case of Kuppuswamy Chettiar vs. ASPA Armugam Chettiar – AIR 1967 SC 1395, the impugned judgment and decree passed by the trial court deserves to be set aside.

8.8 The trial court also failed to consider and appreciate that in the light of the undisputed fact that the release deed which was assailed was dated 05.03.2011, the suit for declaration would be governed by Articles 58 and 59 of the Limitation Act, which prescribe a period of 3 - 15 - NC: 2024:KHC:47166 RFA No. 204 of 2020 years from 05.03.2011; in the instant case, the suit having been filed on 24.08.2015, well beyond the prescribed period of 3 years from the date of the release deed was clearly barred by limitation and in the absence of sufficient evidence to establish that the plaintiffs came to know about the release deed only after receipt of summons in FDP No.62/2016, I am of the view and in the light of the judgment of the Apex Court in the case of Prem Singh vs. Birbal – (2006) 5 SCC 353, that the judgment and decree passed by the trial court deserves to be set aside on this score also.

8.9 Upon re-consideration, re-evaluation and re- appreciation of the entire material on record, I am of the view that the impugned judgment and decree passed by the trial court is based on erroneous appreciation of the pleadings and evidence of the parties and the same deserves to be set aside and the suit of the respondents – plaintiffs is liable to be dismissed. - 16 - NC: 2024:KHC:47166 RFA No. 204 of 2020 Points 1 and 2 are answered accordingly in favour of the appellant and against the respondents.

#9. In the result, I pass the following:- ORDER (i) Appeal is hereby allowed. (ii) The impugned judgment and decree dated

31.10.2019 passed by the trial court in O.S.7332/2015 is hereby set aside. (iii) The plaintiffs O.S.No.7332/2015 stands dismissed. Sd/- (S.R.KRISHNA KUMAR) JUDGE SRL.