J.RAGHU Vs. S.GOVINDAIAH

JUDGEMENT

(1.) Aggrieved by the orders passed on I.A.1/23 in O.S.No.6670/2023 dtd. 24/7/2024 by XLI Addl. City Civil and Sessions Judge, Bengaluru, the defendant is before this court.

(2.) The plaintiff has filed a suit seeking declaration that the plaintiff is the absolute owner of the suit schedule property to declare the gift deed dtd. 3/9/2020 registered at the Senior Sub-Registrar Office, Bangalore is null and void and the same is created by the defendant No.1 and it is obtained by fraud and undue influence and to direct the defendants to hand over the vacant possession of the suit schedule property to plaintiff No.1 and also to declare the possession of defendant over the suit schedule property is illegal and unlawful and also for grant of mesne profits.

(3.) It is the specific case of the plaintiff that he is the absolute owner of the suit schedule property. After the death of the plaintiff's wife on 29/3/2020, the defendant being the relative of his first wife who is taking care of the plaintiff and under the assistance of the plaintiff No.1 he had approached the plaintiff and his deceased wife and day by day, he developed close relationship with the plaintiff. By taking undue advantage of the plaintiff No.1 he instigated the plaintiff to execute the WILL in his favour in respect of the suit schedule property as he undertake to look after and take care of the maintenance of the plaintiffs by providing food, cloth, medicines and other maintenance. The plaintiff believing the words of the defendant, agreed for execution of the WILL. The defendant took the plaintiff No.1 to Sub-Registrar's office for registration of the WILL. Believing the words of the defendant had affixed the signature in the deed under the bonafide belief that the same is the WILL. By that the defendant completed the registration process and intead of WILL he obtained a gift deed which is obtained by playing fraud, without the consent and knowledge of the plaintiff. The defendant was paying the amounts towards rents to the plaintiff. During the month of February and March, he has not paid any amount. When the same was questioned the defendant had given an untenable reply by producing the gift deed and claimed that he is the absolute owner of the property and also physically evicted the plaintiff from the possession of the suit schedule property. As such the defendants are constrained to file the suit. It is also stated that they have approached the tribunal on 9/6/2023 and under Maintenance and Welfare of the Parents and Senior Citizenship Act, 2007 by filing application under Sec. 23 of the Act for cancellation of the gift deed dtd. 3/9/2020 and the tribunal had directed the defendant not to alienate the suit scheduled property and the same is pending consideration before the tribunal. The defendants have also filed a suit for declaration against the plaintiff and the same is pending consideration. It is stated that the plaintiff had come before the court seeking the relief of declaration and cancellation of the gift deed. Along with the suit they have also filed I.A.No.1 restraining the defendant from alienating the property. The court by way of this impugned order had allowed the application. While allowing the application, the court observes that the plaintiff has produced a certified copy of the gift deed, encumbrance certificate, khatha certificate, copy of the petition in Misc.No.77/2023 filed before the Tribunal for Maintenance and Welfare of Parents and Senior Citizens and deed of Cancellation of Will. The plaintiff's claim of title on the basis of inheritance is not disputed by the defendant. The court observes that the documents produced by the plaintiffs clearly establish that the plaintiffs have made out a prime facie case at this stage for grant of interim relief and the balance of convenience lies in favour of the plaintiff's. Therefore, if the application is not the allowed the plaintiffs would be put to great hardship and the irreparable injury thereon would tilt in the favour of the plaintiff and accordingly allowed the application. Aggrieved thereby the appellant is before this court.