JUDGMENT 1 [Link].

358/2017
KATK710015892017

IN THE COURT OF THE ADDL. CIVIL JUDGE AND

J.M.F.C., PAVAGADA.

Present : Smt. Akhila.H.K., B.A. LL.B.

Addl. Civil Judge & J.M.F.C.,
Pavagada.

Dated : This the 28th day of September, 2022

O.S. No.358/2017

Plaintiffs : 1. [Link]
W/o Late Giriyappa,
D/o Late Hanumantharayappa,
Aged about 50 years,
R/o Eraganahalli village,
Gowdagere Hobli, Sira Taluk.
Tumkur Dist.

2. [Link]
W/o [Link],
D/o Late Hanumantharayappa,
Aged about 47 years,
R/o Upparahalli village,
Amarapuram Mandal,
Madakasira Taluk,
Ananthapuram Dist.

(Represented by : Sri.D.P.R, Advocate.)

­V/s­

Defendants : 1. [Link]
W/o Late Hanumantharayappa,
Aged about 78 years,
JUDGMENT 2 [Link].358/2017

2. [Link]
W/o Rangadhamappa,
D/o Late Hanumantharayappa,
Aged about 53 years,

Defendant No.1 and 2 are R/o

[Link] village, Nidagal Hobli,
Pavagada Taluk.

3. [Link]
W/o Eranna,
D/o Late Hanumantharayappa,
Aged about 43 years,
R/o Ramaiahnapalya village,
Nidagal Hobli, Pavagada Taluk.

(Represented by : Defendant No.1 to 3 by S.N.M

Advocate)

1. Date of filing of suit : 13.11.2017.

2. Suit filed for : Partition and
Separate Possession
3. Date of recording of evidence
commenced on : 04.04.2018
4. Judgment pronounced on : 28.09.2022
5. Total duration : Years Months Days
04 10 15

([Link].H.K.)
Addl. Civil Judge & J.M.F.C.,
Pavagada.
*****
JUDGMENT

This is a suit filed by the plaintiffs against the

defendants for relief of partition and separate possession of
1/5th share each in all the suit schedule properties.
JUDGMENT 3 [Link].358/2017

SUIT SCHEDULE PROPERTIES

1. The Landed property bearing [Link].56/1

measuring 0­33 Guntas (Thirty Three), Asst. at Rs.0.44 paise,
situated at [Link] village, Nidagal Hobli, Pavagada Taluk,
which is bounded by :­
East : Land of [Link].
West : Land of [Link].
North : Govt. Halla and after Land of
[Link].
South : Lands of Sanna Hanumanthappa
and [Link].

2. The Landed property bearing [Link].56/3

measuring 2 Acres 33 Guntas, Asst. at Rs.16.76 paise,
situated at [Link] village, Nidagal Hobli, Pavagada Taluk,
which is bounded by :­
East : Devalakere ­ Ramaiahanapalya
road and Lands of
[Link] and Sanna
Hanumanthappa.
West : Govt. Halla and after Land of
[Link].
North : Govt. Halla and after Land of
[Link].
South : Lands of [Link] and
Sanna Hanumanthappa.

3. The Landed property bearing [Link].59/1

measuring 2 Acres 32 Guntas excluding kharab of one Gunta,
Asst. at Rs.00.96 paise, situated at [Link] village, Nidagal
Hobli, Pavagada Taluk, which is bounded by :­

East : Lands of [Link] and land

bearing Sy. No.57.
West : Lands of [Link].
North : Land bearing Sy. No.57.
JUDGMENT 4 [Link].358/2017
South : Lands of Hanumakka and
Lingamma.

4. The Landed property bearing [Link].66/5

measuring 2 Acres, Asst. at Rs.00.52 paise, situated at
[Link] village, Nidagal Hobli, Pavagada Taluk, which is
bounded by :­
East : Cart track and after land of
[Link].
West : Land of Anjinappa.
North : Lands [Link] and
Anjinappa.
South : Lands of Nagamma and
Doddakka.

5. The R.C.C residential house property bearing

Katha No.207/262/262 measuring East ­ West 14 feets,
North ­ South 18 feets, situated at [Link] village, Nidagal
Hobli, Pavagada Taluk, which is bounded by :­

East : House property belongs to Sanna

Jagaluru Nayaka.
West : House property belongs to
Ramakrishnappa.
North : Road.
South : House property belongs to Hotel
Madaiah.

2. The case of the plaintiff in brief is that:­

The suit is filed for partition and separate possession of

the plaintiffs's 1/5th share each in the suit schedule
properties and for declaring that Gift Deed dated: 20­07­2015
is not binding on the share of the plaintiffs. Plaintiff No.1, 2,
defendant No.2 and 3 are daughters of defendant No.1 and
JUDGMENT 5 [Link].358/2017
late Hanumantharayappa S/o Late Bandappa. It is the case
of the plaintiffs that their father Hanumantharayappa died in
the year 2004, leaving behind himself, defendant No.1,
plaintiffs, defendants No.2 and 3 and one son Bandappa as
his legal heirs. The said son Bandappa died during the year
2005 without getting married and without any legal heirs.
After the death of Hanumantharayappa and Bandappa, 1st
defendant became the kartha and manager of the Hindu joint
undivided family consisting of the plaintiff and defendants. It
is contended by the plaintiff that the suit schedule properties
are joint family properties of the plaintiff and the defendants.
After the death of Hanumantharayappa, the Khata with
respect to the suit schedule properties was mutated in favour
of defendant No.1 by the revenue authorities. Item No.5 of the
suit schedule properties stood in the name of 2nd defendant.
However, the said house property is also joint family property.
It is submitted by the plaintiffs that, both the plaintiffs and
defendants have equal right and share in all the suit schedule
properties and till date there has been no partition of the said
properties. However, the 1st defendant without consent of the
plaintiffs has created a Registered Gift Deed dated: 20­07­
2015 in favour of 2nd defendant with respect to Item No.2
and 4 of the suit schedule properties. Similarly she has
created another Registered Gift Deed dated: 20­07­2015 in
favour of 3rd defendant with respect to Item No.1 and 3 of the
suit schedule properties. On the basis of said gift deeds the
khatha of Item No.1 to 4 of the suit schedule properties have
been transferred into the name of defendants No.2 and 3.
JUDGMENT 6 [Link].358/2017
Plaintiffs have stated that, they came to know about the said
Gift Deeds dated: 20­07­2015 on the recently. Immediately
they have requested the defendants to give their share in the
suit schedule properties. However, the defendants have
postponed the same on one pretext or the other. Ultimately
about a week back before filing of the suit plaintiffs have
approached the defendants and demanded them to effect
partition. But, the defendants have refused to do so.
Therefore, the plaintiffs have filed this suit against the
defendants.

3. On services of summons to defendants No.1 to 3,

they have appeared through their learned counsel.
Defendants No.2 has filed written statement wherein she has
admitted the relationship between the parties and she has
also admitted that, the suit schedule properties belonged to
her father Hanumantharayappa. But, she has stated that, her
father Hanumantharayappa did not die intestate and has
executed a Will in favour of defendant No.1 bequeathed all the
suit schedule properties in her favour. Hence, after the death
of Hanumantharayappa, his wife defendant No.1 became the
absolute owner of the suit schedule properties. It is further
contended that, on the basis of the said Will khatha has been
effected in the name of 1st defendant. It is contended that, on
the basis of the Will defendant No.2 has became the absolute
owner with respect to the suit schedule properties and the
plaintiffs and other defendants have no right, title, interest
over the said properties. Being the owner of the suit schedule
JUDGMENT 7 [Link].358/2017
properties defendant No.1 has executed Gift Deeds dated: 20­
07­2015 in favour of defendants No.2 and 3 with respect to
Item No.1 to 4 of the suit schedule properties. Therefore, it is
contended by the defendant No.2 that, the Gift Deeds are
legal since 1st defendant is the absolute owner of the suit
schedule properties. It is further alleged by the defendant
No.2 that, the plaintiffs were informed before the execution of
the gift deed only after their consent gift deeds were executed
in favour of defendants No.2 and 3. It is further contended
that, Item No.5 of the suit schedule properties does not
belong to father of the plaintiffs and it has been purchased by
the defendant No.2 in the year 1999 from one
[Link] of Ramayyanapalya for valuable
consideration. Hence, Item No.5 is the self acquired property
of the defendant No.2 and it is not liable to be included in this
suit. On all these grounds defendant No.2 has requested the
Court to dismiss the suit of the plaintiffs.

4. Based on the pleadings of the parties my learned

predecessor in office has framed the following:­

ISSUES

1. Whether the plaintiffs prove that suit schedule

properties are the Hindu undivided joint family
properties of plaintiffs and defendants ?

2. Whether the plaintiffs prove that the 1st defendant

has created registered gift deed dated: 20­07­2015
executed by the 1st defendant in favour of the 2nd
defendant in respect of Item No.2 and 4 of the suit
schedule properties ?
JUDGMENT 8 [Link].358/2017

3. Whether the plaintiffs are entitled 1/5th share

each in all the suit schedule properties ?

4. What decree or order ?

5. In order to prove the case of the plaintiffs, the

plaintiff No.2 has examined herself as P.W­1 and filed
affidavit re­iterating the averments of the plaint and produced
17 documents, got them marked as Ex.P­1 to P­17 and
plaintiff got examined another witness namely
[Link], who is the son of plaintiff No.1 as P.W­2. On
the other hand, defendant No.3 examined herself as D.W­1
and filed affidavit re­iterating the averments of the written
statement and produced 05 documents, got them marked as
Ex.D­1 to D­5 and defendant No.1 has examined herself as
D.W­2.

6. Heard arguments of the learned counsel for the

plaintiff and perused the documents on record.

7. My findings to the above Issues and Addi tonal

Issues are as follows:­
Issue No.1 : In the Partly Affirmative.
Issue No.2 : In the Affirmative.
Issue No.3 : In the Partly Affirmative.
Issue No.4 : As per final order, for the
following:
REASONS

8. Issue No.1:­

The suit is filed for partition and separate possession of

the plaintiffs's 1/5th share each in the suit schedule
JUDGMENT 9 [Link].358/2017
properties and for declaring that Gift Deeds dated: 20­07­
2015 is not binding on the share of the plaintiff. Plaintiff
No.1, 2, defendant No.2 and 3 are daughters of defendant
No.1 and late Hanumantharayappa S/o Late Bandappa. It is
the case of the plaintiffs that their father
Hanumantharayappa died in the year 2004, leaving behind
him, defendant No.1, plaintiffs, defendants No.2 and 3 and
one son Bandappa as his legal heirs. The said son Bandappa
died during the year 2005 without getting married and
without any legal heirs. After the death of
Hanumantharayappa and Bandappa, 1st defendant became
the kartha and manager of the Hindu joint undivided family
consisting of the plaintiff and defendants. It is contended by
the plaintiff that the suit schedule properties are joint family
properties of the plaintiff and the defendants. After the death
of Hanumantharayappa the khatha with respect to the suit
schedule properties was mutated in favour of defendant No.1
by the revenue authorities. Item No.5 of the suit schedule
properties stood in the name of 2nd defendant. However, the
said house property is also joint family property. It is
submitted by the plaintiffs that, both the plaintiffs and
defendants have equal right and share in all the suit schedule
properties and till date there has been no partition of the said
properties. However, the 1st defendant without consent of the
plaintiffs has created a Registered Gift Deed dated: 20­07­
2015 in favour of 2nd defendant with respect to Item No.2
and 4 of the suit schedule properties. Similarly she has
created an other Registered Gift Deed dated: 20­07­2015 in
JUDGMENT 10 [Link].358/2017
favour of 3rd defendant with respect to Item No.1 and 3 of the
suit schedule properties. On the basis of said gift deeds the
khatha of Item No.1 to 4 of the suit schedule properties have
been transferred into the name of defendants No.2 and 3.
Plaintiffs have stated that, they came to know about the said
Gift Deeds dated: 20­07­2015 on the recently. Immediately
they have requested the defendants to give their share in the
suit schedule properties. However, the defendants have
postponed the same on one pretext or the other. Ultimately
about a week back before filing of the suit plaintiffs have
approached the defendants and demanded them to effect
partition. But, the defendants have refused to do so.

9. In order to prove their contentions, the plaintiff

No.2 has examined herself as P.W­1 and filed her affidavit in
lieu of her examination in chief reiterated the averments in
the plaint. In support of her contentions, she has got marked
Ex.P­1 to P­16 documents.

10. Ex.P­1 is the R.T.C of Sy. No.56/1 of [Link]

village for the year 2017­18 i.e., the Item No.1 of the suit
schedule properties. The said R.T.C is standing in the name
of defendant No.3. As per coloumn 10, defendant No.3 has
acquired right over the said property by way of
M.R.H11/2015­16 'dana' dated: 06­05­2016. Thus, she has
acquired the right by way of Gift over the said property. Ex.P­
2 is the R.T.C of Sy. No.56/3 of [Link] village for the year
2017­18 i.e., the Item No.2 of the suit schedule properties.
The said R.T.C is standing in the name of Nagamma i.e,
JUDGMENT 11 [Link].358/2017
defendant No.2. She has acquired right over the said property
by way of M.R.H1/2015­16 'dana' dated: 19­10­2015. Thus,
she has acquired right over the said property by way of gift.
Ex.P­3 is the R.T.C of Sy. No.59/1 of [Link] village for the
year 2017­18 i.e., the Item No.3 of the suit schedule
properties. The said property is standing in the name of
defendant No.3, Sakamma. As per the said R.T.C, she has
acquired right over the said property by way of
M.R.H11/2015­16 'dana' dated: 06­05­2016. Thus, she has
acquired right over the said property by way of gift. Ex.P­4 is
the R.T.C of Sy. No.66/5 of [Link] village for the year 2013­
14 i.e., the Item No.4 of the suit schedule properties. The said
property is standing in the name of Hanumantharayappa S/o
late Bandeppa i.e., the father of the plaintiff and defendants
No.2 and 3. As per the said R.T.C, he has acquired right over
the said property by way of M.R.H34/2011­12 'vibhaga'
dated: 31­12­2011. Hence, he has acquired right over the said
property by way of partition. Ex.P­5 is the R.T.C of Sy.
No.66/5 of [Link] village for the year 2014­15 i.e., the Item
No.4 of the suit schedule properties. On perusal of R.T.C the
said property is standing in the name of Shankaramma wife
of Hanumantharayappa i.e., defendant No.1. As per the R.T.C
she has acquired right over the said property by way of
M.R.H3/2013­14 'pouthi' dated: 05­12­2013. Hence, she has
acquired right over the said property on the death of her
husband Hanumantharayappa. Ex.P­6 is the R.T.C of Sy.
No.66/5 of [Link] village for the year 2017­18 i.e., the Item
No.4 of the suit schedule properties. On perusal of the R.T.C
JUDGMENT 12 [Link].358/2017
the said property is standing in the name of Nagamma i.e.,
Defendant No.2. As per the said R.T.C she has acquired right
over the said property by way of M.R.H1/2015­16 'dana'
dated: 19­10­2015. Thus, she has acquired right over the
property by way of gift. Ex.P­7 and P­8 are Form No.10 i.e.,
Demand Register Extract and Form No.9 i.e., Assessment
Register Extract for the year 2017­18 issued by [Link]
Grama Panchayath with respect to property bearing
Assessment No.207 which is standing in the name of
defendant No.2. The said property is Item No.5 of the suit
schedule properties. Ex.P­9 is the executed by defendant No.1
in favour of defendant No.2 with respect to Item No.2 and 4 of
the suit schedule properties. Ex.P­10 is the Gift Deed dated:
20­07­2015 executed by defendant No.1 in favour of
defendant No.3 with respect to Item No.1 and 3 of the 'suit
schedule properties. Ex.P­11 is the certified copy of
[Link].H3/2013­14 pertaining to Item No.4 of the suit
schedule properties. On perusal of the said document it
reveals that, the said property was earlier standing in the
name of Hanumantharayappa S/o Late Bandeppa i.e., the
father of the plaintiffs and defendants No.2 and 3. After his
death on 20­09­2004 which has been mutated in to the name
of defendant No.1 Sankaramma i.e., his wife. Ex.P­12 is the
certified copy of M.R.H1/2015­16 is pertaining to Sy. No.66/5
i.e., Item No.4 and Sy. No.56/3 i.e., Item No.2 of the suit
schedule properties. On perusal of the said documents it
reveals that earlier Item No.4 was standing in the name of
defendant No.1, thereafter which has been mutated into the
JUDGMENT 13 [Link].358/2017
name of defendant No.2 on basis of gift. Item No.2 of the suit
schedule property was earlier standing in the name of
defendant No.1 and has been mutated in the name of
defendant No.2 on the basis of gift as per the said documents.
Ex.P­13 is the certified copy of [Link].H1/2015­16
pertaining to Sy. No.56/1 i.e., suit property Item No.1 of suit
properties and Sy. No.59/1 i.e., Item No.3 of the suit schedule
properties. On perusal, it reveals that both the properties
were earlier standing in the name of defendant No.1 and they
have been mutated into the name of defendant No.3 on basis
of gift. Ex.P­14 to P­16 are the plaint, written statement,
judgement passed in [Link].183/1972 filed between
Gundamma W/o Bandeppa i.e., grand mother of the plaintiffs
and defendants No.2 and 3 and Hanumantharayappa S/o
Bandeppa i.e., father of plaintiffs and defendants No.2 and 3
against the Earakyathappa S/o Dodda Hanumanthappa.
Hosurappa S/o Mote Narasappa, Govindappa S/o Thimmaiah
for relief of declaration that the plaintiffs are the owners of the
suit schedule properties and for consequential relief of
permanent injunction. The suit schedule properties involved
in the said suit are Item No.1 to 4 of this suit. As per Ex.P­16
i.e, judgment passed in [Link].183/1972 the plaintiffs in the
said suit i.e., father of the plaintiffs Hanumantharayappa and
his mother Gundamma have been declared as owners in
possession of Item No.1 to 3 of the suit schedule properties
and have also been granted permanent injunction with
respect to the suit properties against the defendants. The suit
JUDGMENT 14 [Link].358/2017
is dismissed with respect to Item No.4 of the suit schedule
properties.

11. P.W­1 has been cross examined by the learned

counsel for the defendants wherein she has stated that the
suit schedule properties are belonging to her grand father
Bandeppa, She has admitted that her father has purchased a
house property from one Gonchagara Hanumantharayappa,
but she does not know when he has purchased the said
property. She has stated that, the said house property is in
the name of her mother i.e., defendant No.1, she has denied
that the suits schedule properties are self acquired properties
of her father. She has denied that, she has released her rights
over the suit schedule properties orally. She has stated that,
she got to know about the gift deed executed by her mother
15 days before filing the suit immediately, she obtained
certified copies of the said gift deeds. She has orally
demanded for partition from defendant No.1. She has stated
that, she does not know the extent of Item No.5 house
property. She does not know the value at which the said
house was purchased. She has denied that the 2nd defendant
has purchased the Item No.5 from Gonchagara
Hanumantharayappa. She has denied the suggestion that,
she does not have any right over the suit schedule properties.

12. Plaintiffs have also examined P.W­2 Manjunath

i.e., S/o 1st plaintiff, Lakshmakka. He has filed his affidavit
in lieu of his examination in chief wherein he has reiterated
the contents of the plaint. He has got marked the Special
JUDGMENT 15 [Link].358/2017
Power of Attorney executed by his mother in his favour as
Ex.P­17. He has been cross examined by learned counsel for
the defendants wherein he has admitted that, he has been
residing at Sira Taluk. He has stated that, he is not aware
about the contents of the affidavit filed by him. He has stated
that, the suit schedule properties originally belonged to his
grand father Bandeppa. He has denied the execution of gift
deed by defendant No.1 in favour of defendants No.2 and 3.
He has admitted that, for the R.T.C of the suit schedule
properties are in the name of defendants No.2 and 3. He has
further stated that, defendants No.2 and 3 are in possession
of the suit schedule properties. He has admitted that,
defendant No.2 has constructed a house in Sy. No.5 of the
suit schedule properties. He has denied that, the defendant
No.2 has purchased Item No.5 from on Gonchagara
Hanumantharayappa. He has admitted that, the documents
pertaining to Item No.5 are standing in the name of defendant
No.2 from the time of purchasing the said property. He has
denied the suggestion that, Nagamma has borne the
expenditure for construction of house in Item No.5 and she
has voluntarily stated that even they have contributed money
for construction of a house in Item No.5 of the suit schedule
properties. He has denied the suggestion that, Item No.5 is
the self acquired property of the defendant No.2. He has
denied the suggestion that, he does not have any right over
the suit schedule properties. With this the plaintiffs have
closed their side of evidence.
JUDGMENT 16 [Link].358/2017
13. On the other hand, defendants to prove their
contentions have examined defendant No.3 as D.W­1. She
has filed her affidavit in lieu of her examination in chief
wherein she has reiterated the contents of the written
statement. In support of her contentions, she has got marked
5 documents as Ex.D­1 to D­5.

14. Ex.D­1 is the Gift Deed dated: 20­07­2015 which

is already marked as Ex.P­10. She has produced R.T.C of Sy.
No.56/1 of [Link] village for the year 2021­22 i.e., Item
No.1 of the suit schedule properties as Ex.D­2. On perusal of
the said property is standing in the name of defendant No.3.
On perusal of coloumn No.10 it is seen that defendant No.3
has acquired the said property by way of gift. Ex.D­3 is the
R.T.C of Sy. No.59/1 of [Link] village for the year 2021­22
i.e., Item No.3 of the suit schedule properties. Perusal of
Ex.D­3 reveals that, the said property is standing in the name
of defendant No.3. On perusal of coloumn No.10 it is
apparent that defendant No.3 has acquired Item No.3 by way
of gift. Ex.D­4 is the R.T.C of Sy. No.66/5 of [Link] village
for the year 2021­22 i.e., Item No.4 of the suit schedule
properties. Perusal of Ex.D­4 reveals that, Item No.4 is
standing in the name of defendant No.2. On perusal of
coloumn No.10 reveals that, defendant No.2 has acquired
Item No.4 by way of gift. Ex.D­5 is the R.T.C of Sy. No.56/3 of
[Link] village for the year 2021­22 i.e., Item No.2 of the suit
schedule properties. Perusal of Ex.D­5 reveals that, Item No.2
is standing in the name of defendant No.2. Perusal of
JUDGMENT 17 [Link].358/2017
coloumn No.10 reveals that, defendant No.2 has acquired
Item No.2 by way of gift.

15. D.W­1 has been cross examined by learned

counsel for the plaintiff. In her cross examination she has
stated that, suit schedule properties are self acquired
properties of her mother i.e., defendant No.1. She has denied
having knowledge about the mode of acquisition of suit
schedule properties by her mother. She has further deposed
that, one Ganganna is a witness to gift deed Ex.D­1. She has
denied having knowledge about Ex.P­14 to P­16. She has
denied that there has been no partition between the plaintiffs
and defendants. She has stated that her mother i.e.,
defendant No.1 has executed a Will in favour of her self and
defendant No.2. She has denied that the plaintiffs have 1/5th
share in the suit schedule properties. She has denied that she
has created Gift Deed dated: 20­07­2015. She has denied the
suggestion that, her mother defendant No.1 has no right to
execute gift deed in her favour.

16. Defendant No.1 i.e., the mother of plaintiffs and

defendants No.2 and 3 Shankaramma has examined herself
as D.W­2. She has filed her affidavit in lieu of her
examination in chief wherein she has reiterated the contents
of her written statement. She has not got marked any
documents in support of her contention. She has been cross
examined by the learned counsel for the plaintiffs. In her
cross examination she has stated that, her father has gifted
her the suit schedule properties, but she does not know the
JUDGMENT 18 [Link].358/2017
date of the said gift. She has denied that, the suit schedule
properties is originally belonged to her father­in­law and her
husband acquired right over the suit schedule properties by
virtue of judgment passed in [Link].183/1972. She has
denied that, the suit schedule properties were mutated into
her name after the death of her husband. She has denied the
suggestion that, she has executed Ex.P­9 and P­10 gift deeds
in favour of defendants No.2 and 3 to defeat the right of the
plaintiffs. She has stated that, she has executed the gift deed
in favour of defendants No.2 and 3 since they are looking
after her in her old age. She has denied the suggestion that,
her husband has purchased Item No.5 of the suit schedule
properties out of the income derived from Item No.1 to 4. She
has stated that, Item No.5 was purchased by defendant No.2
and 3 from one Gonchagara Hanumantharayappa. Apart
from that she has denied all the suggestion put­forth to her
by counsel for the plaintiffs.

17. This Court has meticulously considered the oral

and documentary evidence let in by both the plaintiffs and
defendants in this case. All the issues cast burden of proof on
the shoulder of the plaintiffs. Plaintiffs by producing Ex.P­14
to P­16 i.e., plaint, written statement, judgment and decree
passed in [Link].183/1972 have been able to prove that Item
No.1 to 3 of the suit schedule properties are under the
ownership of the father of the plaintiffs and defendants No.2
and 3 i.e., Hanumantharayappa and his mother Gundamma.
Since as per the judgement passed in [Link].183/1972
JUDGMENT 19 [Link].358/2017
Hanumantharayappa and Gundamma have been declared as
owners of Item No.1 to 3 of the suit schedule properties.
Thereafter, on the death of Gundamma the said properties hs
come to the possession and ownership of the father of the
plaintiffs i.e., Hanumantharayappa. Ex.P­11
[Link].H3/2013­14 pertaining to Item No.4 reveals that,
Item No.4 was in the ownership and possession of
Hanumantharayappa i.e., the father of the plaintiffs. Hence,
by producing Ex.P­14 to P­16 and Ex.P­11 plaintiffs have
been able to prove that the Item No.1 to 4 of the suit schedule
properties were in possession and ownership of their father
Hanumantharayappa. The defendants have contended in
their written statement that, the said Hanumantharayappa
has executed a Will in favour of defendant No.1. Hence, on
the basis of said Will defendant No.1 has became the absolute
owner of the Item No.1 to 4 of the suit schedule properties.
However, no such Will has been produced by the defendants
during the trial. Defendant No.1 who is examined as D.W­2
has not whispered anything about Will executed in her favour
by her husband. Rather she has deposed that she has
acquired Item No.1 to 4 of the suit schedule properties from
her father Govindappa. Ofcourse she has not produced any
documents even to prove that she has acquired Item No.1 to 4
from her father. Hence, under such circumstances it is
proved that the said Hanumantharayappa, who is the owner
in possession of Item No.1 to 4 of suit schedule properties has
died intestate. Hence, after his death Item No.1 to 4 have
become the joint family properties in the hands of plaintiffs
JUDGMENT 20 [Link].358/2017
and defendants. With respect to Item No.5 of the suit
schedule properties the plaintiffs have not produced any
documents to show that their father Hanumantharayappa
was the owner of the said properties. As per Ex.P­7 and P­8,
Item No.5 is standing in the name of Nagamma i.e.,
Defendant No.2. Therefore, it has to be presumed that, Item
No.5 of the suit schedule properties is not a joint family
property. Therefore Issue No.1 is answered in the Partly
Affirmative.

18. Issue No.2 and 3:­ Also places the burden of

proof on the plaintiff. It is with respect to the allegation of the
plaintiffs that Registered Gift Deed dated: 20­07­2015
executed by 1st defendant in favour of 2nd defendant in
respect of Item No.2 and 4 of the suit schedule properties as
per Ex.P­9 is a created document. Admittedly, as per Ex.P­2
and P­6 i.e., R.T.C of Item No.2 and 4 of the suit schedule
properties and Ex.D­4 and D­5/ Item No.2 and 4 of the suit
schedule properties are standing in the name of defendant
No.2. On perusal of the said [Link] it reveals that defendant
No.2 has acquired right over the said properties by way of gift.
Ex.P­12 i.e., [Link].H1/2015­16 also reveals that Item No.2
and 4 have been mutated into the name of defendant No.2
from the name of defendant No.1 on the basis of gift. Ex.P­
9/Ex.D­1 is the gift deed in question whereunder Item No.2
and 4 of the suit schedule properties were gifted by defendant
No.1 to defendant No.2. It is alleged by the plaintiff that, the
said gift deed is a created and concocted document executed
JUDGMENT 21 [Link].358/2017
behind the back of the plaintiffs without their consent.
Further, it is contended that, defendant No.1 did not have
any right to execute such a gift deed in favour of defendant
No.2 since Item No.2 and 4 are joint family properties. On
perusal of Ex.P­9/D­1 there is no recital about the mode of
acquisition of the gift deed prepared by defendant No.1. It is
settled law that one can only gift their self acquired properties
to another person. As already discussed under Issue No.1
Item No.1 to 4 of the suit schedule properties were the self
acquired properties of the father of the plaintiffs,
Hanumantharayappa. This aspect is proved by the plaintiffs
by producing Ex.P­14 to P­16. Thereafter, it is also proved
under Issue No.1 that the said Hanumantharayappa died
intestate. On perusal of Ex.P­5/R.T.C pertaining to Item No.4
it is seen that the said property was mutated into the name of
defendant No.1 after death of her husband Hanumanthappa.
Ex.P­11 i.e., M.R.H3/2013­14 pertaining to Item No.4 also
proves that, Item No.4 has been mutated into the name of
defendant No.1 after death of her husband
Hanumantharayappa on 20­09­2004. As per Ex.P­12 Item
No.2 and 4 have been mutated into the name of defendant
No.2 from the name of defendant No.1 on basis of gift. Hence,
on perusal of these documents it is clear that Item No.2 and 4
were standing in the name of defendant No.1 after the death
of her husband Hanumantharayappa on basis of pavathi
khatha. Defendant No.1 by taking advantage of her name
appearing in the R.T.C has executed gift deed as per Ex.P­
9/Ex.D­1 in favour of defendant No.2. But as proved in Issue
JUDGMENT 22 [Link].358/2017
No.1 Item No.1 to 4 of the suit schedule properties are the
joint family properties of the plaintiffs and defendants, hence
defendant No.1 did not have right to execute gift deed as per
Ex.P­9 in favour of defendant No.2. However, the execution of
gift deed by defendant No.1 in favour of defendant No.2 is not
a created document. Defendant No.1 did not have the right to
execute Ex.P­9, hence it is a invalid and void document and it
is not binding on the share of the plaintiffs.

19. It is pertinent to note that, the plaintiffs in the

plaint has sought for declaration that the gift deeds executed
in favour of both the defendants is not binding on the share of
the plaintiff. However, by over sight my learned predecessor
in office has not framed any issue with respect to the invalid
of the gift deed dated: 20­07­2015 executed by 1st defendant
in favour of 3rd defendant with respect to Item No.1 and 3 of
the suit schedule properties. But, both the parties during trial
have understood the issue involved in the case and have also
led evidence with respect to gift deed executed by 1st
defendant in favour of 3rd defendant. Both the counsels for
the defendants and the plaintiffs have posed question during
the cross examination regarding the said gift deed and the
said gift deed is also marked as Ex.P­10. Therefore, it is not
necessary at this stage of judgement to frame an issue in this
regard and this aspect can very well be considered under
Issue No.3. No prejudice will be caused to both the parties
since they have understood the issues involved and have
already let in sufficient evidence.
JUDGMENT 23 [Link].358/2017
20. With respect to the validity of Ex.P­10/Gift Deed
similar to Ex.P­9 defendant No.1, Shankaramma did not have
the right to execute such gift deed in favour of defendant
No.3, since Item No.1 and 3 are joint family properties
belonging to both the plaintiffs and defendants. The said
properties are not absolute properties of Shankaramma i.e.,
defendant No.1. This aspect is already discussed under Issue
No.1 and it is proved that Item No.1 to 4 are joint family
properties. Hence, the Gift Deed dated: 20­07­2015 executed
by defendant No.1 in favour of defendant No.3 as per Ex.P­10
is a void document and is not binding on the share of the
plaintiffs.

21. By virtue of the discussion made thus for it is

proved that Item No.1 to 4 are joint family properties of both
the plaintiffs and the defendants. Originally the said
properties belonged to the father of the plaintiffs. As already
discussed this aspect is proved by the plaintiffs by producing
Ex.P­14 to P­16 and Ex.P­11. It is also proved by the plaintiffs
that, Hanumantharayappa has died intestate. Hence,
Plaintiffs No.1 and 2, Defendants No.1 to 3 being his legal
heirs are entitled to 1/5th share each U/Sec.8 of Hindu
Succession Act. Here it is relevant to extract Section 8 of the
Hindu Succession Act.

Section 8 in The Hindu Succession Act, 1956:

8. General rules of succession in the case of

males. The property of a male Hindu dying intestate
JUDGMENT 24 [Link].358/2017
shall devolve according to the provisions of this
Chapter.

(a) firstly, upon the heirs, being the relatives

specified in class I of the Schedule;

(b) secondly, if there is no heir of class I, then

upon the heirs, being the relatives specified in class
II of the Schedule;

(c) thirdly, if there is no heir of any of the two

classes, then upon the agnates of the deceased; and

(d) lastly, if there is no agnate, then upon the

cognates of the deceased.

Therefore, the plaintiffs and the defendants being

class ­ I heirs of the deceased Hanumantharayappa they are
entitled to 1/5th share each in Item No.1 to 4 of the suit
schedule properties. However, plaintiffs have not been able to
prove that Item No.5 is a joint family property of the plaintiffs
and defendants. Hence, the suit is dismissed with respect to
Item No.5 of the suit schedule properties. Hence, Issue No.2
is answered in the Affirmative, Issue No.3 is answered in the
Partly Affirmative.

22. Issue No.4:­ In view of the discussions made in

Issue No.1 to 3, this Court proceeds to pass the following : ­

ORDER

The suit of the plaintiffs is hereby

partly decreed with costs.
JUDGMENT 25 [Link].358/2017
Plaintiffs and defendants No.1 to 3 are
entitled to 1/5th share each in Item No.1 to
4 of the suit schedule properties.

It is declared that Gift Deed dated: 20­

07­2015 executed by defendant No.1 in
favour of defendant No.2 with respect to
Item No.2 and 4 of the suit schedule
properties is not binding on the share of the
plaintiffs. It is declared that Gift Deed
dated: 20­07­2015 executed by defendant
No.1 in favour of defendant No.3 with
respect to Item No.1 and 3 of the suit
schedule properties is not binding on the
share of the plaintiffs.

The suit is respect to Item No.5 of the

suit schedule properties is hereby
dismissed.

Draw decree accordingly.

(Directly generated through the computer by the

Stenographer to my dictation with my verification and then
signed and pronounced by me in the Open Court dated this
the 28th day of September ­ 2022.)

([Link].H.K.)
Addl. Civil Judge & J.M.F.C.,
Pavagada.

*****
JUDGMENT 26 [Link].358/2017

ANNEXURE

List of witnesses examined for plaintiffs:­

P.W­1 : [Link].
P.W­2 : [Link].

List of exhibits marked for plaintiffs:­

Ex.P­1 to 6 : R.T.C Extracts.

Ex.P­7 and P­8 : Form No.10 i.e., Demand Register
Extract and Form No.9 i.e.,
Assessment Register Extract for the
year 2017­18.

Ex.P­9 : Certified copy of Gift Deed dated:

20­07­2015.
Ex.P­10 : Certified copy of Gift Deed dated:
20­07­2015.
Ex.P­11 : Certified copy [Link].H3/2013­14.
Ex.P­12 : Certified copy [Link].H1/2015­16.

Ex.P­13 : Certified copy [Link].H11/2015­16.

Ex.P­14 : Certified copy of Plaint in

[Link].183/1972.
Ex.P­15 : Certified copy of Written statement in
[Link].183/1972.
Ex.P­16 : Certified copy of Judgment passed in
[Link].183/1972 dated: 17­12­1974.
Ex.P­17 : Notarized copy of Special Power of
Attorney dated: 06­08­2019.

List of witnesses examined for defendants:­

D.W­1 : [Link].
D.W­2 : [Link].
JUDGMENT 27 [Link].358/2017

List of exhibits marked for defendants:­

Ex.D­1 : Certified copy of Gift Deed dated:

20­07­2015.
Ex.D­2 to : R.T.C Extracts.
Ex.D­5

([Link].H.K.)
[Link] Judge & J.M.F.C.,
Pavagada.