AKRAM PASHA Vs. T. NIRMALA

JUDGEMENT

(1.) HEARD the learned Counsel for the appellant and the respondent. The appellant was the defendant before the trial court. The suit was for declaration, possession and injunction. It was the plaintiff's case that she was the widow of one Subramanyam. Subramanyam had died on 30.4.1997, leaving behind the plaintiff and two children as his legal heirs. He had retired from service in the Army and the plaintiff had received the retirement benefits. It was also stated that one Sheela, daughter of Govindaswamy had filed a suit in O.S. No. 10594/1997 before the City Civil Court, Bangalore, claiming that she was the wife of Subramanyam. When the plaintiff entered appearance and had produced documents to show that she was indeed the legally wedded wife of Subramanyam, it transpires that Sheela withdrew the suit as on 4.1.2001. The plaintiff claimed that there are any number of documents to indicate that she has acted as the wife and later as the widow of Subramanyam through out, insofar as the property in question is concerned The plaintiff had even secured a loan on the deposit of title deeds pertaining to the suit property with M/s. Vijaya Bank. It is when she applied for transfer of khata, after receiving the terminal benefits on the death of her husband, that she realised to her shock that Sheela had executed a sale deed in favour of one Vijay Babu in respect of the suit property for a total consideration of Rs. 2,50,000/ -. After obtaining a certified copy of the encumbrance certificate, the plaintiff had found that Sheela had claimed that Subramanyam had executed an agreement of sale with Vijay Babu and after his death, Vijay Babu had filed a suit for specific performance before the City Civil Court, Bangalore in O.S. No. 2333/1998, in which, Sheela and Vijay Babu had entered into a compromise and in terms of the compromise decree, Sheela had executed a sale deed in favour of Vijay Babu.

(2.) IT was the plaintiff's case that Sheela had nothing to do with her husband Subramanyam and she had no right to convey the property under a sale deed claiming to be his wife or widow and that it was clearly a collusive suit between Sheela and Vijay Babu and that the sale deed executed was with an ulterior motive. Therefore, the plaintiff asserted that she was the only legally wedded wife of Subramanyam and Sheela having filed a suit and withdrawn the same, did not enable Sheela to lay any claim over the property of Subramanyam. Therefore, the plaintiff had filed a suit against Sheela and Vijay Babu in O.S. No. 6453/2001, where both the defendants had remained absent and there was an ex -parte decree in her favour and when she went to take possession of the land, she however, found that the present defendant claimed to be in possession. The defendant claimed that he had purchased the same under a sale deed during the pendency of the suit filed by the plaintiff in O.S. No. 6453/2001. It was also stated that Vijay Babu had executed a sale deed in favour of the defendant on 5.2.2001 and this was evident from the encumbrance certificate obtained in respect of the property. This transaction was not reflected in the encumbrance certificate obtained by her earlier and therefore, after ascertaining the transaction, which was actually reflected in a subsequently obtained encumbrance certificate, she had filed the suit claiming that the sale deed in favour of Vijay Babu or the sale deed in favour of the defendant by Vijay Babu, were not binding on her and that she should be declared as the owner of the property being in possession of the same.

(3.) THE contention of the defendant was that the plaintiff in her cross -examination had categorically admitted that she had filed a suit against Sheela and had also admitted the sale by Vijay Babu in favour of the defendant and that the plaintiff had knowledge of the same and in respect of which, a suit having been filed belatedly, it was barred by limitation. It was also contended that the suit filed by Sheela in O.S. No. 10594/1997 having been compromised, there was obviously an understanding between the plaintiff and Sheela in enabling the sale transaction and thereafter, seeking to challenge it and therefore had contended that the plaintiff lacked bona fides. The court below thereafter has examined the material evidence placed by the plaintiff insofar as her marital status is concerned and has held in favour of the plaintiff in view of the overwhelming documents available insofar as the relationship of the plaintiff with that Subramanyam is concerned and the court has also addressed the title to the property, as to the manner in which Subramanyam had acquired it and thereafter, the subsequent transactions by Sheela in favour of Vijay Babu and Vijay Babu in favour of the defendant, and has found that there was clearly no right available to Sheela to convey the property in favour of Vijay Babu in the absence of having established any relationship with Subramanyam, except that she had filed a suit claiming to be his wife and had withdrawn the same. Therefore, the court concluded that there was no substance in the defence set up by the defendant as he did not acquire any title in view of the transaction being bad in law insofar as the initial transaction by Sheela in favour of Vijay Babu being void, the subsequent transactions would also be voided and hence has decreed the suit as prayed for. It is that which is under challenge in the present appeal. There is no denial of the fact that Sheela had not established that she was the legally wedded wife of Subramanyam, in which event, the property which admittedly belonged to Subramanyam could not have been sold by her in favour of Vijay Babu. This basic fact being accepted, all the other claims made by the defendant of being a bona fide purchaser for value would not advance the case of the defendant. Therefore, the appeal lacks merit and is dismissed.