Smt.Gangamma W/O. Sali Veerappa vs Smt.Saraswatemma W/O. Sali ...
2022 Latest Caselaw 2296 Kant

             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

         DATED THIS THE 14TH DAY OF FEBRUARY 2022

                          BEFORE

     THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

      REGULAR SECOND APPEAL NO.100426 OF 2020 (DEC)

BETWEEN

      SMT.GANGAMMA W/O. SALI VEERAPPA
      SINCE DECEASED BY HER LRS
      i.e., APPELLANTS 1 TO 5,
      WHO ARE ALREADY ON RECORD.

1.    MALLAMMA W/O. PRAKASH
      AGE : 46 YEARS,
      OCC : HOUSEHOLD,
      R/O : CHINCHARKI-584115
      TQ : MANVI, DIST : RAICHUR.

2.    SHASHIKALA W/O. SOMANNA
      AGE : 44 YEARS,
      OCC : HOUSEHOLD,
      R/O : PURA-583277
      TQ : KUSHTAGI, DIST : KOPPAL.

3.    SHASHIDHAR REDDY
      S/O. SALI VEERAPPA
      AGE : 44 YEARS,
      OCC : AGRICULTURE,
      R/O : KESARAHATTI-583277
      TQ : GANGAVATHI,
      DIST : KOPPAL.

4.    SHAKUNTALA W/O. BASAVARAJ
      AGE : 43 YEARS,
      OCC : HOUSEHOLD,
                             2




      R/O : VAGGALAGUDDA-584120
      TQ : MASKI, DIST : RAICHUR

5.    SHASHIBUSHANA
      S/O. SALI VEERAPPA
      AGE : 42 YEARS,
      OCC : HOUSEHOLD,
      R/O : KESARAHATTI-583227.
      TQ : GANGAVATHI,
      DIST : KOPPAL.
                                            ...APPELLANTS

(BY SRI. SHRIHARSH A NEELOPANT, ADVOCATE)

AND
SMT.SARASWATEMMA
W/O. SALI VEERAPPA
AGE : 56 YEARS,
OCC : AGRICULTURE,
R/O : BUDDINNI VILLAGE-584129
TQ : MANVI, DIST : RAICHUR
                                            ...RESPONDENT

(BY SRI. DEEPAK C MAGANUR, ADVOCATE)

      THIS RSA IS FILED U/SEC.100 OF CPC, PRAYING TO SET
ASIDE THE JUDGMENT & DECREE DATED 07.04.2018 PASSED IN
R.A.NO.43/2017 BY THE FILE OF THE SENIOR CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, GANGAVATHI, AND THE
JUDGMENT AND DECREE DATED 05.08.2017, PASSED IN O.S.
NO.287/2012 BY THE PRINCIPAL CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS, GANGAVATHI AND DISMISS THE
SUIT OF THE PLAINTIFF/RESPONDENT.


      THIS RSA COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                               3




                          JUDGMENT

The captioned regular second appeal is filed by the

legal representatives of unsuccessful defendant questioning

the judgment and decree of the Courts below wherein

respondent-plaintiff is declared to be the owner of suit

schedule property based on registered gift deed executed

by Sali Veerappa on 20.09.1984.

2. The parties are referred to as per their ranks

before the Trial Court.

3. The facts leading to the case are as under:

Respondent-plaintiff has filed a suit for declaration

and injunction by specifically contending that her husband

i.e., late Sali Veerappa, during his lifetime, gifted the suit

schedule property in favour of plaintiff by executing gift

deed dated 20.09.1984. The respondent-plaintiff claimed

that pursuant to execution of registered gift deed, she is in

exclusive possession and enjoyment over the suit schedule

property. The respondent-plaintiff was compelled to file

present suit as original defendant namely Gangamma was

asserting that she is legally wedded wife of Sali Veerappa

and on that strength, she got her name mutated over the

suit schedule properties behind the back of respondent-

plaintiff and hence, it is in this background, respondent-

plaintiff has filed a suit in O.S.No.287/2012. On receipt of

summons, the original defendant i.e., Gangamma contested

the proceedings and has stoutly denied the total averments

made in the plaint by the respondent-plaintiff. She

specifically contended in her written statement that the gift

deed is a concocted document and same is prepared in

collusion with attesting witnesses to falsely claim right over

the suit schedule property and therefore, pleaded that it is

not a valid gift. It was also specifically contended that the

alleged gift deed is not coupled with delivery of possession

and therefore, disputed the gift deed in favour of

respondent-plaintiff. The Trial Court having assessed the

oral and documentary evidence has answered issue No.1

and 2 in the affirmative by holding that respondent-plaintiff

has succeeded in establishing her right and title over the

suit schedule property pursuant to execution of the gift

deed by her husband Sali Veerappa on 02.09.1984 as per

Ex.P1. While answering issue No.2, the Trial Court having

examined the material on record, has also come to the

conclusion that original defendant-Gangamma tried to

dispossess the respondent-plaintiff. On these set of

reasons, while answering issue No.3 in the negative and

issue No.4 in the affirmative, the Trial Court has proceeded

to decree the suit filed by the respondent-plaintiff. Feeling

aggrieved, the original defendant-Gangamma preferred an

appeal in RA No.43/2017. The First Appellate Court being a

final fact finding authority having independently assessed

ocular and documentary evidence has concurred with the

findings of the Trial Court and has proceeded to dismiss the

appeal. The Appellate Court while concurring with the

findings of the Trial Court has also recorded a finding that

the alleged fraud as made out by the defendant is neither

specifically pleaded in the plaint nor evidence is let in. On

these set of reasons, the Appellate Court has dismissed the

appeal. It is against these concurrent judgment and decree

of the courts below, the legal representatives of original

defendant-Gangamma are before this Court.

4. The learned counsel appearing for appellant

would vehemently argue and contend before this Court that

the execution of the gift deed is not proved by respondent-

plaintiff and in the present case on hand, he would submit

to this Court that proviso to section 68 of the Indian

Evidence Act would come into play. Since the donor-Sali

Veerappa has disputed the gift and therefore, it is

incumbent on the part of respondent-plaintiff to prove due

execution of the gift deed as per Ex.P1 by examining one of

the attesting witnesses. On these set of grounds, he would

submit to this Court that both the Courts have erred in

declaring respondent-plaintiff as the owner of the suit

schedule property. He would also submit to this Court that

there are inconsistencies as could be found from the original

gift deed vide Ex.P1. In the said background, the

respondent-plaintiff as a donee has put her LTM on the

alleged gift deed, while in the present proceedings, she has

put her signature. It is in this background, the learned

counsel for the appellant would submit to this Court that

there is no valid acceptance and in that view of the matter,

the ingredients of proof of gift deed under Section 122 and

123 of the Transfer of Property Act would come into play

and therefore, substantial question of law would arise in the

present appeal.

5. Per contra, learned counsel appearing for

respondent-plaintiff reiterating the contentions canvassed

by the appellant would submit to this Court that original

defendant-Gangamma had no locus-standi to question the

gift deed. Even otherwise, it is respondent-plaintiff, who has

filed present suit seeking relief of declaration and injunction

based on registered gift deed executed by Sali Veerappa.

He submits that the clinching evidence would clearly

establish that this property was self-acquired property of

Sali Veerappa. During his lifetime, the donor has never

challenged the gift deed. He would also submit to this Court

that the judgment of the Trial Court indicate that Sali

Veerappa died in 2012 and even in 2012 the donor has

never questioned the gift deed in favour of respondent-

plaintiff and hence, submits that no substantial question of

law would arise in the present appeal and prayed for

dismissal of the appeal.

6. The contention of the appellant that on account

of non-examination of attesting witnesses, as the gift deed

was denied by donar cannot be acceded to. It appears that

appellants-defendants have made a feeble attempt for the

first time before this Court. These contentions are not found

in the written statement. Even otherwise, there is no

material placed on record to indicate that Sali Veerappa-

donor disputed the gift deed on 02.09.1984 in favour of

respondent-plaintiff, even in earlier suit i.e.

O.S.No.107/2011 wherein Sali Veerappa was very much

alive has not challenged the gift deed. The said contention

was not taken either by donor or by the original defendant.

One more significant detail which has to be taken note by

this Court is that in O.S.No.107/2011 the suit land was not

included, whereas litigation was in respect of other

properties with a specific assertion that they are all

ancestral properties. Therefore, the exclusion of this

property in the earlier litigation pre-supposes that it is self-

acquired property of Sali Veerappa. Though original

defendant claimed that Sali Veerappa, during his lifetime

has relinquished his share in the suit schedule property, the

relinquishment deed is not produced. Only mutations are

produced. By mere production of mutation, the appellants-

defendants cannot claim that donor had disputed or denied

due execution of the gift deed. Therefore, proviso to section

68 of the Act has no application in the present case on

hand. When the donor has not challenged the gift deed,

both the Courts below were justified in declaring that

respondent-plaintiff is the absolute owner of the suit

schedule property based on registered gift deed executed

by her husband Sali Veerappa. I do not find any substantial

question of law in the present appeal. Accordingly, the

appeal is dismissed being devoid of merits.

7. In view of disposal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and are dismissed accordingly.

SD/-

JUDGE YAN