Karnataka High Court
Smt Seethamma @ Nanjamma (Dead)Her Lrs vs Smt Gowramma W/O Ramaiah on 10 March, 2026
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR JUSTICE M.G.S.KAMAL
REGULAR FIRST APPEAL NO.2274 OF 2006 (DEC)
C/W
REGULAR FIRST APPEAL NO.1833 OF 2019
IN R.F.A. NO. 2274/2006
BETWEEN:
SMT SEETHAMMA @ NANJAMMA
(DEAD) HER LRS
1. SMT.LAKSHMAMMA
SINCE DEAD BY HER LRS
(a). VENKATESH S/O KENCHAPPA
AGED ABOUT 25 YEARS
(b). NAGARAJ S/O KENCHAPPA
AGED ABOUT 23 YEARS
2. CHIKKEGOWDA S/O LATE SEETHAMMA
SINCE DEAD BY LR'S
2(a) NAGARATHNAMMA
W/O LATE CHIKKE GOWDA
AGED ABOUT 55 YEARS
KODUR VILLAGE
MALUR TALUK, KOLAR DISTRICT.
2(b) PAVITHRA
D/O LATE CHILLE GOWDA
AGED ABOUT 33 YEARS
HINDLAVADI VILLAGE
KASABA HOBLI
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ANEKAL TALUK.
2(c) KUSUMA
D/O LATE CHIKKE GOWDA
AGED ABOUT 31 YEARS
ITTANGUR VILLAGE
ANEKAL TALUK.
3. GANGAMMA
D/O LATE SEETHAMMA
SINCE DEAD BY LR'S
3(a) MANJULA
D/O LATE GANGAMMA
AGED ABOUT 35 YEARS
R/AT NO.2/2
MADHURANAGAR 1ST STAGE
JANATHA HOUSE,VARTHUR EAST
BENGALURU.
4. HOSARAYAPPA
S/O LATE SEETHAMMA
SINCE DEAD BY LR'S
4(a) SAROJAMMA
W/O LATE HOSARAYAPPA
AGED ABOUT 55 YEARS
4(b) MANIKANTA
S/O HOSARAYAPPA
AGED ABOUT 31 YEARS
APPELLANT 4(a) AND 4(b) ARE
R/AT KEMPASANDRA POST
BEHIND D.S.F.S. CHURCH
ELECTRONIC CITY
BENGALURU.
4(c) KOMALA
D/O LATE HOSARAYAPPA
AGED ABOUT 28 YEARS
R/A NO.358,
MUDAGALAMMA TEMPLE ROAD
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DEVANAHALLI TOWN
DEVANAHALLI TALUK
BENGALURU.
5. DUGGAPPA S/O LATE SEETHAMMA
AGED ABOUT 44 YEARS
6. SURESH S/O LATE SEETHAMMA
SINCE DEAD BY LRS
6(a) RATHNAMMA
W/O LATE SURESH
AGED ABOUT 40 YEARS
6(b) VANAJA
D/O LATE SURESH
AGED ABOUT 21 YEARS
6(c) DIVYA
D/O LATE SURESH
AGED ABOUT 19 YEARS
6(a) TO 6(c) ARE R/AT
KTHAGANURU VILLAGE AND POST
ANEKAL TALUK
BENGALURU RURAL DISTRICT.
7. SHARADAMMA
D/O LATE SEETHAMMA
AGED ABOUT 42 YEARS
R/AT GUNJOOR PALYA,
GUNJOOR POST
VARTHUR HOBLI,
BANGALORE EAST - 560 087.
... APPELLANTS
(BY SRI. K. SHRIHARI., ADVOCATE)
AND:
1. SMT GOWRAMMA
W/O RAMAIAH
AGED ABOUT 30 YEARS
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2. SRI. RAMAKRISHNAPPA
S/O KEMPARAPPA
AGED ABOUT 45 YEARS
BOTH ARE R/AT
HINDALABELE VILLAGE
ATTIBELE HOBLI
ANEKAL TALUK - 562 106.
SINCE DEAD BY LRS.,
2(a) RUDRAMMA
D/O RAMAKRISHNAPPA
2(b) PAPAMMA
D/O RAMAKRISHNAPPA
2(c) LAKSHMAMMA
D/O RAMAKRISHNAPPA
2(d) AMAR NARAYAN
S/O RAMAKRISHNAPPA
RESPONDENTS NO.2(a) TO 2(d)
ARE R/AT INDALABELE VILLAGE
ATTIBELE HOBLI
ANEKAL TALUK - 562 106.
2(e) LAKSHMI
W/O SRINIVAS
D/O RAMAKRISHNAPPA
2(f) NIVEDITHA
D/O LAKSHMI
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2(g) PREETHI
D/O LAKSHMI
RESPONDENTS NO.2(e) TO 2(g) ARE
R/AT NO.1/242, SATHINAYAKANAPALLI VILLAGE
KAKKADASAM THARAPPU
KAKKADASAM POST
DENKANIKOTTAI, KRISHNAGIRI
TAMIL NADU - 635 107.
3. M/s.SHREE DHANALAKSHMI HIGH -TECH-CITY
PROMOTERS AND DEVELOPERS
#136, KAMALMANOHAR
4TH A CROSS, EAST OF NGEF L/O
KASTURI NAGAR, BENGALURU - 560 038
REP. BY ITS MANAGING DIRECTOR
4. MR. R. SHANKAR
AGED ABOUT 42 YEARS
S/O LATE RAMACHANDRAPPA
NO.136, KAMALMANOHAR
4TH A CROSS, EAST OF NGEF L/O
KASTURI NAGAR,
BENGALURU - 560 038.
5. MOHAN MONOHAR MUNGALE
AGED ABOUT 50 YEARS
S/O MONOHAR NARAYAN MUNGALE
NO.136, KAMALMANOHAR
4TH A CROSS, EAST OF NGEF L/O
KASTURI NAGAR, BENGALURU - 560 038.
... RESPONDENTS
(BY SRI. M T JAGAN MOHAN, ADVOCATE FOR R1;
V/O DATED 15.02.2024, SRI. S. RAJASHEKAR., ADVOCATE
FOR LR's OF DECEASED R2;
V/O DATED 25.11.2009 R3, R4 AND R5 ARE SERVED
THROUGH PAPER PUBLICATION)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC., AGAINST THE JUDGMENT AND DECREE DT.
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29.09.2006 PASSED IN O.S.NO.111/2006 ON THE FILE OF THE
CIVIL JUDGE (SR.DN.) & JMFC., ANEKAL, DISMISSING THE
SUIT FOR PARTITION.
IN R.F.A. NO. 1833/2019
BETWEEN:
SMT.GOWRAMMA
W/O RAMAIAH
AGED ABOUT 63 YEARS,
R/AT INDALABELE VILLAGE,
ATTIBELEHOBLI, ANEKAL TALUK,
BANGALORE DISTRICT.
... APPELLANT
(BY SRI. M.T. JAGAN MOHAN, ADVOCATE)
AND:
1. SRI. RAMAKRISHNAPPA
S/O KEMPARAPPA,
SINCE DEAD BY LRS
2. SMT. RUDRAMMA
D/O RAMAKRISHNAPPA
AGED ABOUT 43 YEARS
3. CHINNAIAH
S/O RAMAKRISHNAPPA
AGED ABOUT 38 YEARS
4. PAPAMMA
D/O RAMAKRISHNAPPA
AGED ABOUT 35 YEARS
5. LAKSHAMMA
D/O RAMAKRISHNAPPA
AGED ABOUT 32 YEARS
6. AMARESH
S/O RAMAKRISHNAPPA
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(NOW 6TH RESPONDENT IS MAJOR
ALL ARE R/AT INDALABELE VILLAGE,
ATTIBELE HOBLI, ANEKAL TALUK,
BANGALORE DISTRICT.
7. SMT. SEETHAMMA @ NANJAMMA
WIFE OF MUNIYAPPA
SINCE DEAD BY LRS.
7(a) CHIKKEGOWDA
S/O LATE SEETHAMMA
SINCE DEAD BY LRS
7(i) SMT. PAVITHRA D/O LATE CHIKKEGOWDA
W/O ANNAYAPPA
AGED ABOUT 33 YEARS,
RESIDING AT INDULAVADI POST,
INDULAVADI GRAMA,
ANEKAL TALUK,
BENGALURU RURAL DISTRICT.
7(ii) KUSUMA D/O LATE CHIKKEGOWDA
W/O BABU.
R/AT.SARJJAPURA POST.
ETTANGARU GRAMA,
ANEKAL TALUK,
BANGALORE DISTRICT.
7(iii) SMT. NAGAMMA W/O LATE CHIKKEGOWDA
AGED ABOUT 60 YEARS,
RESIDING AT INDULAVADI POST,
INDULAVADI GRAMA,
ANAKEL TALUK,
BENGALURU RURAL DISTRICT.
7(b) GANGAMMA
D/O LATE SEETHAMMA
W/O RAMAKRISHNAPPA
AGED ABOUT 70 YEARS
7(c) HOSARAYAPPA
S/O LATE SEETHAMMA
AGED ABOUT 68 YEARS
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7(d) DUGGAPPA
S/O LATE SEETHAMMA
AGED ABOUT 66 YEARS
7(e) SHARADAMMA
D/O LATE SEETHAMMA
AGED ABOUT 64 YEARS W/O DEVARAJJU
7(f) SURESH
S/O LATE SEETHAMMA
AGED ABOUT 62 YEARS
RESPONDENT NOs. 2 TO 5 AND 7
R/AT KADUR VILLAGE
LAKKUR HOBLI, MALUR TALUK
KOLAR DISTRICT
... RESPONDENTS
(BY SRI. K. SHRIHARI, ADVOCATE FOR R2 TO R6, R7(A) (i to
iii) & R7 (b) TO (f)
V/O DATED 15.02.2024, R2 TO R6 ARE TREATED AS LR's
OF DECEASED R1)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 AND ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT
AND DECREE DATED 29.09.2006 PASSED IN O.S.NO.112/2006
ON THE FILE OF THE CIVIL JUDGE [SR.DN.] AND JMFC.,
ANEKAL, DISMISSING SUIT FOR PARTITION.
THESE REGULAR FIRST APPEALS HAVING BEEN HEARD
AND RESERVED ON 28.01.2026 FOR JUDGMENT COMING ON
FOR PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
CORAM: HON'BLE MR JUSTICE M.G.S.KAMAL
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CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL) These two appeals by the plaintiffs in O.S.No.111/2006 (Old Case No.64/1996) and in O.S.No.112/2006 (Old Case No.48/96 and No.71/2000) being aggrieved by the common Judgment and Decree dated 29.09.2006 passed by the learned Civil Judge, Senior Division and JMFC, Anekal (hereafter referred to as `trial Court') dismissing the said suits filed by the plaintiffs seeking relief of partition.
2. Plaintiff in O.S.No.111/2006 namely Smt.Seethamma also known as Nanjamma is defendant in O.S.No.112/2006. Plaintiff-Smt.Gowramma in O.S.No.112/2006 is the defendant No.1 in O.S.No.111/2006. Smt.Seethamma is paternal aunt of Smt.Gowramma. Since parties intertwined, for clarity, the Genealogy of the family as furnished by the plaintiffs/appellants indicating rank of the parties is extracted hereunder:
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CHIKKADEVAIAH
HONNAPPA LINGAPPA
Smt. Nanjamma(wife)
Devamma Seethamma @ Nanjamma (D7 in OS 112/06)
(W/o Kannappa) W/o Muniyappa) Pltf in OS 111/06 (old No.64/1996)
Dead by LRS
Chikkegowda Gangamma Hosarayppa Duggappa Sharadamma Suresh Lakshmamma (Dead) Venkatesh Nagaraj Akkamma Gowramma (W/o Ramakrishnappa) (D2 in OS 111/06) (w/o Ramaiah) D1 in OS 112/06 (Pltf in OS 112/06, D1 in OS 111/06) Rudramma Chinnaiah Papamma Lakshmma Amaresh
3. Subject matter of the above suits are the following immovable properties:
1.Property bearing Sy.Nos.161/1 Measuring 3 acres 28 guntas Sy.No.161/2 measuring 18 guntas, Sy.No.161/4 measuring 27 guntas, Sy.No.161/5 measuring 36 guntas, Sy.No.151/4 measuring 1 acre 1 gunta sy.no.152/2, measuring 30 guntas all properties are situated at Indalabele Village, Attibele Hobli, Anekal Tq, Bangalore Dist, Bounded on as follows:-
East by : Bada Dyaviaya's land, & Kandyavaiah's land, west by : Harijanara Lakshmiaha's land North by : Shamaiah's Kere & Lingappa' Property, South by : Land belongs to Smt. Eeramma,
2. Property bearing Sy.No.186/2, measuring 32 guntas, situated at Indalabele Village, Attibele Hobli, Anekal Tq, Bangalore Dist, Bounded on East by : Hosabanna's land, west by : Pachappa's property,
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North by : Pachappa's property
South by : Lingappa's property,
3. Property bearing K.No.22, measuring East by west 30 feet and North to south 10 feet, situated at Indalabele village, Attibele Hobli, Anekal Tq, Bangalore Dist, bounded on.
East by : Joojavadi Muniyappa's house,
West by : Nanjanna's House,
North by : Beedhi,
South by : Kariyappa's house,
4. Property bearing K.No.23/2, measuring 21 feet and north to south 16 feet situated at Indalabele Village, Attibele hobli, Anekal Tq, Bangalore Dist, bounded on East by : Road leads to Kariayapp's and Lingappa's house West by : Jungavadi Muniyappa's Vacant land North by : -
South by : Lingappa's house,
5. Property bearing K. No.25/3 measuring East to West 14 ft.
and North to South 10 feet, situated Indalabele village, Attibele Hobli, Anekal Tq, Bangalore Dist, bounded on East by : Kariyappa's house west by : Jungavadi Muniyappa's Vacant land North by : Lingappa's Property.
South by : -
6. Property bearing K. No.25/4 measuring 54 ft. and North to South 18 feet, situated Indalabele Village, Attibele hobli, Anekal Tq, Bangalore Dist, bounded on East by : U.L. Sharabanna's Property, west by : Dinne Muniyappa's Property North by : Govt. Kaluve South by : Lingappa's Property.
4. Case of the plaintiff in O.S.No.111/2006 is:
4.1 That one Chikkadevaiah had two sons namely Honnappa and Lingappa. Honnappa and his wife
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Smt.Nanjamma had two daughters namely Devamma and Seethamma also known as Nanjamma who is the plaintiff in O.S.No.111/2006. Devamma had two daughters namely Akkamma and Gowramma-defendant No.1.
4.2. Akkamma was married to Ramakrishnappa- defendant No.2. Smt.Akkamma and Sri.Ramakrishnappa- defendant No.2 had five children namely Rudramma, Chinnaiah, Papamma, Lakshmamma and Amaresh.
4.3 That after the demise of Chikkadevaiah, the kartha of the family, his two sons Honnappa and Lingappa partitioned the family properties in terms of which Honnappa acquired the suit properties. Said Honnappa and his wife Nanjamma died intestate leaving behind their daughters Devamma and Seethamma @ Nanjamma-the plaintiff.
4.4 Devamma, the first daughter of Honnappa died subsequently leaving behind her only two daughters namely Akkamma and Gowramma- the defendant No.1. Akkamma, the eldest daughter also died leaving behind her husband Ramakrishnappa-defendant No.2 and their children.
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4.5 That Honnappa was cultivating the suit properties during his life time. Upon his demise, Seethamma- the plaintiff was entitled for her share in the suit properties. During the month of December, 1995 she learnt that her father-Honnappa had executed a deed of gift in favour of Ramakrishnappa- defendant No.2 and his wife-Akkamma.
4.6 That the suit properties are the ancestral properties. That Honnappa, the father of the plaintiff was not having authority under law to execute the deed of gift in favour of defendant No.2 and his wife. Defendant No.2 did not derive any right, title, interest over the suit properties based on the said deed of gift. The said deed of gift is a fraudulent and a sham document. Same is bad in law and cannot be acted upon and the said document is not binding on the plaintiff and other legal heirs of Honnappa. Plaintiff being entitled for half of the suit properties filed the suit seeking following reliefs:
"(i)Directing that the Gift deed dated 13.06.1977, registered as Document No.631/1977-78 pages 237, Book 1, Volume 1265, in the office of the Sub-Registrar, Anekal, is null and void and the same cannot be enforced in law;
(ii) for partition and separate possession of the half share of the plaintiff in the suit schedule property/ies;
(iii) to grant the plaintiff such other relief/s as the Hon'ble Court deems fit to grant in the circumstances of the case;
(iv) to award the plaintiff the costs of this suit in the interest of justice and equity."
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4.7 Written statement is filed by Ramakrishnappa- defendant No.2, contending that suit is barred by limitation. The suit properties are not the ancestral properties. Therefore the plaintiff cannot claim share therein. Honnappa, the grandfather of Gowramma-defendant No.1 and Smt.Akkama, wife of defendant No.2 did not die intestate as contended by the plaintiff. Admittedly deed of gift dated 13.06.1977 was executed and registered in the office of Sub-Registrar, Anekal, Bangalore District, by late Honnappa in favour of defendant No.2 and his wife conveying the suit properties. That the suit properties are the absolute properties of Honnappa and are not the ancestral properties as claimed by the plaintiff. Even assuming the suit properties are ancestral properties, Honnappa, being the absolute owner during his lifetime had executed the deed of gift dated 13.06.1977 pursuant to which defendant No.2 and his wife-Akkamma had been in possession and enjoying the same.
4.8 The plaintiff is aware of the execution of the deed of gift executed by Honnappa in favour of the defendant No.2 and his wife as she used visit their house frequently. She having slept over the matter for over 18 years cannot now invoke the
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jurisdiction of the Court. That there is no cause of action to the suit. Hence, sought for dismissal of the suit.
4.9 Based on the pleadings, trial Court framed the following issues:
"1. Whether the plaintiff proves that the suit schedule properties are ancestral joint family properties?
2. Whether the plaintiff proves that deceased Honnappa had no absolute right to gift the suit properties to 2nd defendant and his wife Smt.Akkamma?
3. Whether the 2nd defendant proves that the suit properties are self acquired property of deceased Honnappa?
4. Whether the 2nd defendant proves that he has acquired valid title to the suit properties by virtue of gift deed dated 13.06.1977.
5. Whether the defendant No.2 proves that the suit of plaintiff is barred by time?
6. Whether gift deed executed by the deceased Honnappa is binding on the plaintiff's share?
7. Whether the plaintiff is entitled to the partition in the suit properties?
8. Whether the plaintiffs are entitled to decree prayed for?
9. What decree or order?"
5. Suit in O.S.No.112/2006 is filed by Gowramma- the second daughter of Devamma and granddaughter of Honnappa contending that:
5.1 That one Honnappa had two daughters by name Deviramma and Nanjamma @ Seethamma. Deviramma died leaving behind her two daughters Akkamma and Gowramma-
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the plaintiff. Akkamma died leaving behind her husband- Ramakrishnaiah-defendant No.1 and their children defendants 2 to 6. Suit Properties are the ancestral properties. Honnappa, was the kartha of the family. His daughter Nanjamma @ Seethamma was given in marriage to one Muniyappa of Kodur village. Deviramma was given in marriage to one Kannappa. Honnappa stayed with Deviramma and her family who looked after him till his demise. After his demise Deviramma was managing the affairs of the family. After the demise of Deviramma, Akkamma and Gowramma- the plaintiff were jointly cultivating the suit properties both having respective shares. There is no division in the family properties.
5.2 Since there was misuse in the affairs of the joint family properties, Gowramma- the plaintiff demanded her share which was refused. In the year 1995 she learnt that her sister Akkamma and her husband Ramakrishnaiah-defendant No.1 had obtained deed of gift dated 13.06.1977 by playing fraud on Honnappa and the said deed of gift is not binding. Hence, the suit seeking following reliefs:
a) For partition and separate allotment of the Half share of the plaintiff, in the suit schedule properties, and the Gift deed dated 13.06.1977 is not binding on the plaintiff and the same is null and void.
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b) For an enquiry into mesne profits from the date of the suit till recovery of the plaintiff's share in the suit schedule properties.
c) For awarding the costs of the suit.
d) And for such other relief or reliefs as this Hon'ble Court deems fit to be grant under the circumstances of the case, in the interest of justice and equity."
5.3 Written statement to the said suit has been filed by defendants 1 to 6 contending that the suit properties are the self acquired properties of Honnappa. Said Honnappa was neglected by other family members including his daughters Devamma and Nanjamma. It was defendant No.1 and his wife Akkamma who looked after said Honnappa till his demise. That said Honnappa had initially executed a Will dated 16.10.1967 later he executed deed of gift dated 13.06.1977 in favour of defendant No.1 and his wife Akkamma, who since then have become absolute owners of the suit properties. Honnappa passed away in the year 1978. His daughters Devamma and Seethamma had demanded share in the suit properties. A Panchayat was called before the elders of the village. Defendant No.1 had substantiated his claim over the suit properties on the basis of deed of gift dated 13.06.1977 after which they went away and did not return to the village.
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5.4 Present suit is filed in collusion with Seethamma who has already filed a suit in O.S.No.64/1996 renumbered as 111/2006. The suit of the plaintiff is barred by limitation. Hence, sought for dismissal of the suit.
5.5 Based on the aforesaid pleadings, trial Court framed following issues:
1. Whether the plaintiff proves that the suit properties are joint family properties of herself and defendants?
2. Whether the plaintiff proves that she has got half share in the suit schedule properties?
3. Whether the plaintiff proves that gift deed dated 13.06.1997 is null and void and not binding on her?
4. Whether D1 to 6 prove that late Honnappa transferred the suit schedule properties by executing registered gift deed dated 17.06.1977 and the first defendant along with his wife have become the absolute owners of the suit properties and were in exclusive possession of the same?
5. Whether the D1 to 6 prove that the suit of the plaintiff is barred by time?
6. Whether the defendants No.1 to 6 prove that valuation of suit schedule properties made and court fee paid by the plaintiff is not correct?
7. Whether the L.R's of defendant No.7 prove that they are entitled to partition and their 1/2 share in the suit schedule properties?
8. What order or decree?"
6. Common evidence was recorded before the trial Court in both the suits. One Chikkegowda-son of Seethamma-the plaintiff in O.S.No.111/2006 has been examined as PW1. 26
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documents have been exhibited and marked as Ex.P1 to Ex.P26. Ramakrishnappa-defendant No.1 and Gowramma- defendant No.2 have examined themselves as DW1 and DW2 respectively and 48 documents have been exhibited and marked as Exhibits D1 to D48.
7. On appreciation of the evidence, the trial Court answered the issues framed in O.S.No.111/2006 as under:
Issue No. 1 partly in the affirmative.
Issue Nos.2, 7 and 8 in the negative.
Issue Nos.3, 4, 5 and 6 in the affirmative and consequently dismissed the suit.
and answered issues framed in O.S.No.112/2006 as under:
Issue Nos.1, 2, 3 and 7 in the negative.
Issue Nos.4, 5 and 6 in the affirmative.
8. Being aggrieved legal representatives of plaintiff- Seethamma @ Nanjamma in O.S.No.111/2006 (Old O.S.No.64/1996) are before this Court in RFA No.2274/2006.
9. Gowramma, plaintiff in O.S.No.112/2006 (old O.S.No.71/1996) had preferred regular appeal in R.A.No.39/2007 on the file of District Judge, Bengaluru Rural
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District. The said matter has been transferred before this Court and renumbered as RFA No.1833/2019.
10. Sri.K.Shrihari, learned counsel appearing for the plaintiffs in O.S.No.111/2006 and Sri. M.T.Jagan Mohan, learned counsel appearing for plaintiff in O.S.No.112/2006, taking this Court through the records submitted:
(a) That the execution of the deed of gift by Honnappa did not create any right, title and interest in favour of defendant No.2 and his wife-Akkamma as the said document was obtained by playing fraud on him, as such the said document is not binding on the plaintiffs.
(b) Referring to paragraph 4 of the plaint in O.S.No.111/2006 it is submitted that there is no denial of the averments made in the plaint regarding the document being obtained fraudulently by the defendant No.2, as such the element of fraud has to be inferred as having been admitted by the defendants vitiating the entire transaction. In support of this contention, learned counsel relies upon the Judgment of the Apex Court in the case of Badat and Co. Bombay Vs East India Trading Company reported in 1963 SCC Online SC 9, in the case of Rosammal Issetheenammal, Fernandez(dead)by Lrs and others Vs Joosa, Mariyan Fernandez and others reported in (2000) 7 SCC 189. Referring to paragraph 7 and
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11 respectively of the aforesaid judgments, he submitted if the fact is not specifically denied it is deemed to have been admitted.
(c) He further submitted since the plaintiff has specifically contended the document deed of gift was obtained by fraudulent means, the burden of proving the validity or otherwise of the document shifts on the defendants 1 and 2. That since the document is a deed of gift same is required to be proved in the manner provided under Section 68 of Indian Evidence Act, the defendants 1 and 2 have not discharged the said burden. They have not even examined the attesting witness to the said document. Therefore, he contended that the document has not been proved in the manner known to law. In this regard he relies upon the Judgment of the Apex Court in the case of K.Laxmanan Vs Thekkayil Padmini and others reported in (2009)1 SCC 354. Referring to paragraph 30 of the said Judgment he contended that where the legality and validity of the deed is under challenge, the proviso to Section 68 of the Indian Evidence Act does not become operative and functional.
(d) Thus, he submitted that on both the counts of admission as well as document not having proved in the manner known to law, the trial Court erred in dismissing the suits.
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(e) That the deed of gift having been executed by Honnappa in favour of his son-in-law, the stamp duty ought to have been paid as of a normal conveyance as the `son-in-law' would not fall within the definition of `family'. He submits the document insufficiently stamped is inadmissible in law. Therefore, even on that count, the suit is required to be decreed.
11. Per contra, Sri Rajshekhar, learned counsel for the defendants on the other hand, justifying the judgment passed by the trial Court submitted:
(a) That the suit properties are the absolute properties of Honnappa and he had every right to deal with the same as he deemed appropriate. The suit properties not being the ancestral joint Hindu family properties, the plaintiffs did not derive any share right or interest over the same.
(b) That the defendant in the written statement has specifically denied the averments made at para 4 of the plaint as seen at paragraph 2 of the written statement. Therefore, he submits the contention of admission of the averment is untenable.
(c) As regards requirement of proof of deed of gift by examining witness under Section 68 of Indian Evidence Act, he submitted that the deed of gift has been executed as far back as in the year 1977. The suit has been filed after 18 long years. When the
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plaintiff herself admits execution of the document, the plaintiff cannot contend that the document has not been proved in the manner known to law.
(d) As regards the contention regarding non payment of the stamp duty, he relies upon the judgment of Apex Court in the case of Javer Chand and others Vs Pukhraj Surana reported in 1961 SCC Online SC 22. Referring to paragraph 4 of the said judgment, he submitted when an instrument has been admitted in evidence such admission shall not, except provided in Section 61 be called in question at any stage of the said suit or the proceedings on the ground of said instrument not having been duly stamped. That the present instrument deed of gift was produced during the evidence, same has been marked without any objection from the plaintiff, relied upon by both the parties and only in the appeal stage the plaintiff has raised the issue. Therefore, the same cannot be countenanced. He also relied upon the Judgments in the case of K.Amarnath Vs Smt.Puttamma -ILR 1999 Kar 4634, K.Anjaneya Setty Vs K.H.Rangaiah Setty -ILR 2002 Kar 3613 and Krishna Vs Sanjeev -ILR 2002 Kar 3613 in support of his submissions.
Hence, seeks for dismissal of the appeals.
12. Heard and perused the records.
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13. Learned counsel for plaintiffs/appellants has fairly submitted that the plaintiffs would not insist upon the ground regarding suit properties to be the ancestral joint Hindu family properties. However, the plaintiffs/appellants would restrict these appeals only to the extent of validity or otherwise of the deed of gift.
14. The only point therefore that arises for consideration is:
"Whether the execution of deed of gift dated 13.06.1977 by Honnappa in favour of Ramakrishnappa and wife Akkamma is valid and subsisting?"
15. Learned counsel for the plaintiffs/appellants referred to paragraph 4 of the plaint in O.S.No.111/2006 to contend that the averments and allegations made therein have not been specifically denied by Ramakrishnappa-defendant as such same amounts to admission.
16. The plaintiff in O.S.No.111/2006 at paragraph 4 has averred as under:
"The plaintiff immediately approached the concerned revenue authorities and on verification, came to know that father- Honnappa had said to have executed a gift deed (dana patra) in favour of 2nd defendant and wife without having any manner of right and without knowledge of the plaintiffs, with an intention to deceive the legitimate right of the plaintiff, in respect of suit schedule properties. The suit schedule properties are ancestral
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properties of Honnappa, the father of plaintiffs herein. The said Honnappa was not having authority of law to execute a gift deed in favour of 2nd defendant and his wife. The 2nd defendant shall not derive any right over the said property on the basis of the said gift deed. The said document is a fraudulent and sham document and the same is bad in law, and cannot be acted upon and the said document is not binding on the plaintiff and other L.rs of late Honnappa."
17. Though it is contended that there is no denial to the averments made in paragraph 4 of the plaint, appropriate to refer to the averments made in paragraphs 2, 3, 4 and 5 of the written statement which is as under:
"2. The contention of the plaintiff that Sri Honnappa died intestate does not stand to be test of law and is devoid of merit and truth and hence the same is hereby denied by this defendant. Moreover, the said contention contradicts the plaintiff's own statement pleadings at para 4 vis., "Honnappa is said to have executed the gift deed (Danapatra) in favour of the 2nd defendant and his wife"......". It is admitted fact by the plaintiff herself that the gift deed aforesaid was executed in accordance with law by late Honnappa in favour of the 2nd defendant and his deceased wife, Smt.Akkama. This is inconsistent and repugnant stand taken by the plaintiff speak for themselves that the claim of the plaintiff in so far as the schedule properties are concerned cannot be sustained in the eye of law.
3. Here again, the plaintiff never adduced an iota of evidence in support of her case that the scheduled properties are ancestral is far from the truth. In fact and reality, the schedule properties are self-acquired properties of the late Shri.Honnappa.
4. Assuming but not needing the schedule properties are said to be the ancestral properties as averred by the plaintiff, nevertheless, it was late Shri.Honnappa who had become absolute owner of the schedule properties when he was alive since the plaintiff ceased to have any manner of right, title or interest in the schedule properties for having she got married and settled down with her husband. Moreso, the plaintiff had/has no right under the
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law to claim share in the coparceners property when her father was alive.
5. In the given case, late Shri.Honnappa had admittedly conveyed the schedule properties as gift in favour of 2nd defendant and his wife late Akkamma, in terms of the above said registered gift deed when he was alive by exercising his absolute right of ownership under the law. That being so, the plaintiff's claim to the scheduled properties are the ancestral properties and she has right of inheritance thereof does not and shall not arise."
18. The contents of the aforesaid paragraphs in the written statement indicate that defendant No.2 apart from specifically denying the averments and allegations made by the plaintiff at paragraph 4 of the plaint, has also further specifically pleaded with regard to the absolute right and entitlement of Honnappa to execute the deed of gift.
19. In view of the averments made in paragraphs 2, 3, 4 and 5 of the written statement the contention of the learned counsel for the plaintiff/appellants, that there is no denial by the defendants to the averments made in paragraph 4 of the plaint cannot be accepted. Reliance place on by learned counsel for the appellants to the Judgments of the Apex Court in the case of Badat and company and Rosammal Issetheenmmal supra is of no avail. On other hand the said Judgments support the case of the defendants.
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20. On the point of shifting of burden of proof under Section 68 of the Indian Evidence Act submission of learned counsel for the appellants cannot be accepted.
21. Section 68 of the Evidence Act reads as under:
"68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness atleast has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
22. The plaintiff at paragraph 4 of the plaint as noted above has not specifically denied the execution of deed of gift but has only questioned the right of Honnappa to execute such document. It is further contended that Honnappa executed the deed of gift in favour of defendant No.2 and his wife without knowledge of the plaintiff and with an intention to deceive her legitimate right in the suit properties. Thus, there is no specific denial of the execution of deed of gift.
23. Further except stating that "the said document is a fraudulent and sham document and same is bad in law and cannot be acted upon....." no particulars of fraud are pleaded.
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24. It is necessary at this juncture also to refer to provisions of Order VI Rule 4 CPC, which require plaintiff providing better particulars in respect of the allegations with regard to misrepresentation, undue influence, coercion and fraud, nothing is pleaded by the plaintiff. The said provision reads as under:
4. Particulars to be given where necessary.--In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful 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 dates and items if necessary) shall be stated in the pleading."
25. Perusal of paragraph 4 of the plaint in O.S.No.111/2006 which is verbatim produced even in plaint in O.S.No.112/2006 indicate that no particulars are given in justification of the claim of deed of gift being fraudulent and sham document. In other words no details are forthcoming as to how, who and when the fraud was perpetrated. These are the essential elementary particulars of pleadings which required to have been provided by the plaintiffs. Since the plaintiffs have sought for a declaratory relief to declare the execution of the deed of gift dated 13.06.1977 to be null and void and not being enforceable, as the same was allegedly obtained by fraudulent means, the burden was on the plaintiffs to have
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specifically pleaded and proved the matter sufficient enough to set aside the deed of gift.
26. In the grounds of the appeal for the first time it is sought to be urged that Honnappa was under the mercy of defendant No.2. There was undue influence and coercion. He was not in sound state of mind. He was suffering from Senile Dementia resulting in memory loss. No such pleading are forthcoming in both the plaints.
27. Thus in the absence of specific pleading with regard to allegation of fraud and proof regarding the same, the initial burden not having been discharged by the plaintiffs, the same cannot be shifted on the defendants.
28. Reliance placed on by learned counsel for the appellants to the judgment of Apex Court in the case of K.Laxmanan supra is of no avail. The facts involved in the said case are that, in a suit filed by the plaintiff therein for partition the defendant therein had set up and propounded the Gift and Will. It is under those circumstances, the Apex Court found that suspicious circumstances regarding execution of the documents was to be dispelled by the propounder and the onus was on the propounder to explain the same to the satisfaction the Court and only when such burden was
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discharged the Court would accept the Will to be genuine. The Apex Court at paragraph 30 of the said judgment found legality or validity of the deed of gift was under challenge in the trial Court for which the parties had led their evidence. Therefore, in the said case, proviso to Section 68 of the Indian Evidence Act did not become operative and functional.
29. In the instant case as found at paragraph 4 there is no dispute that the document gift deed was indeed executed by Honnappa. Thus there is no specific denial as contemplated under proviso to Section 68 of the Indian Evidence Act as extracted hereinabove. The only averment made by the plaintiff is that the said document was obtained by defendant by fraudulent means without giving any particulars as required under law. In the absence of specific denial to the execution of deed of gift, there is no burden on the defendants to prove execution of deed of gift as required thereunder.
30. Trial Court has adverted to this factual and legal aspect of the matter at paragraphs 24 and 25 of its Judgment.
31. As regards the other contention of document not being sufficiently stamped and being inadmissible and that defendant No.2 being son-in-law do not fall within the meaning
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of family for exemption of payment of stamp duty etc., it is necessary to note that such a plea is raised for the first time during arguments. No details as to stamp duty that is required to be paid or deficit payment of stamp duty if any is brought on record. The deed of gift is dated 13.06.1977. The same has been produced, marked and exhibited as Exhibit D1. Perusal of Exhibit D1 indicate that stamp duty of Rs.530/- has been paid and additional stamp duty of Rs.190/- being deficit stamp duty is paid.
32. It is necessary to note that the Apex Court in the case of M/s.N.N.Global Mercantile Private Limited Vs M/s.Indo Unique Flame Limited and others reported in (2023) 7 SCC 1 has held that though a document can be admitted in evidence it cannot be acted upon if it is not duly stamped.
33. In the instant case nothing is brought on record to indicate that the stamp duty paid was insufficient. It is also not stated as to what is the stamp duty that is required to be paid, in the year 1977. Necessary to note Article 28 of Karnataka Stamp Act, 1957 providing for payment of stamp duty of instrument of Gift was amended on 01.04.2001 and on 01.04.2016 giving concession on payment of stamp duty where the donee is member of the family of the donor.
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34. Learned counsel for appellants relied upon the Judgment of the Apex Court in the case of Javer Chand supra wherein at paragraph 4 it has been held as under:
"..........Once a document had been marked as an exhibit in the case and the trial has proceeded along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross examination of their witnesses, Section 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid it is not open either to trial Court itself or to a Court of appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction."
35. Similar is the view taken by this Court in the case of Amarnath Vs Smt.Puttamma reported in ILR 1999 Kar 4634 wherein it is held that "once Court admits a document even wrongly, such admission becomes final and cannot be reopened."
36. Thus, in the absence of plaintiffs/appellants making out a prima facie case of document being incapable of being acted upon for want of payment of sufficient stamp duty in the light of the Judgment relied upon by the learned counsel for respondents, this Court is not persuaded by the submission made by learned counsel for appellants regarding inadmissibility of the document at Ex.D1. Point raised above is answered accordingly.
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For the aforesaid reasons and analysis, appeals are dismissed. Judgment and decree dated 29.09.2006 passed by the trial Court in O.S.No.111/2006 and O.S.No.112/2006 is confirmed.
SD/-
(M.G.S. KAMAL) JUDGE SBN