Paramappa S/O Ningappa Hadapad vs Nagaratna W/O Siddappa Hadapad
2022 Latest Caselaw 3196 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 24TH DAY OF FEBRUARY, 2022

                         BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

              R.S.A.NO.100683/2015 (DEC.)

BETWEEN

1.     PARAMAPPA S/O. NINGAPPA
       HADAPAD, SINCE DECEASED BY LR'S

1(A)   NINGAPA
       S/O. PARAMAPPA HADAPAD,
       AGE: 57 YEARS, OCC: AGRICULTURE,
       R/O. KURUGUND,
       TQ DIST: HAVERI-581108.

1(B)   PRAKASH
       S/O. SUBHASHAPA HADAPAD,
       AGE: 30 YEARS, OCC: AGRICULTURE,
       R/O. SHIRAHATTI,
       TQ: KUNDAGOL.
       DIST. DHARWAD-581113.

1(C)   REKHA
       W/O. MALLIKARJUN BHADRPUR,
       AGE: 28 YEARS,
       OCC:AGRICULTURE,
       R/O. SHEREWAD-581113.
       TQ. KUNDAGOL,
       DIST: DHARWAD.

1(D) SHAILA
     W/O SIDDAPPA KAYAKD,
     AGE : 55 YEARS,
     OCC: AGRICULTURE,
     R/O TQ: HADAGALI,
     DIST: BALLARI.
                                            ... APPELLANTS
(BY SRI SHIVASAI M. PATIL, ADVOCATE)
                               2




AND

1.    SMT. NAGARATN
      W/O. SIDDAPPA HADAPAD,
      AGE: 25 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O. NITTUR,
      TQ: HARAPANAHALI,
      DIST: DAVANAGERI-583213.

2     DYAMAVVA
      W/O SHIVALINGAPPA HADAPAD,
      AGE: 55 YEARS,
      OCC: AGRICULTURE,
      R/O. HANUMAPUR-581115.
      TQ: RANEBENNUR,
      DIST: HAVERI

3     CHANNAMMA
      W/O NAGAPPA HADAPAD,
      AGE: 45 YEARS,
      OCC: HOUSEHOLD,
      R/O. NITTUR,
      TQ: HARAPANAHALLI,
      DIST: DAVANAGERE.
                                         .... RESPONDENTS

(BY SRI S.N.KINI ADVOCATE FOR R1 AND PROP.R3)
NOTICE TO PROP.R2-SERVED)

      THIS RSA IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT TO SET
ASIDE THE JUDGEMENT & DECREE DATED 23.07.2015 PASSED
IN R.A.NO.26/2014 PASSED BY THE COURT OF PRINCIPAL
SENIOR CIVIL JUDGE AT HAVERI AND JUDGMENT AND DECREE
DATED   10.01.2014   IN   O.S.NO.317/2011 PASSED BY   THE
ADDITIONAL CIVIL JUDGE, HAVERI AT HAVERI.

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




                          : JUDGMENT :

The captioned second appeal is filed by the legal

representatives of original plaintiff wherein suit filed

by original plaintiff by name Paramappa Hadapad

seeking relief of declaration questioning the gift deed

executed by him is dismissed and confirmed by the

First Appellate Court.

2. The relevant family tree is as follows :

Paramappa Ningavva

Ningappa Nagaraj Dyamavva Renuka (died) (died)

= Channamma

Nagaratna

3. The facts leading to the above said case are

as follows:

The plaintiff Paramappa filed a suit for

declaration questioning the gift deed executed by him

in favour of his granddaughter of predeceased son

alleging that the gift deed is secured by practicing

fraud. The original plaintiff Paramappa claimed that he

had no intention to gift the suit schedule property in

favour of defendant and there was no occasion to

execute any gift deed. The original plaintiff Paramappa

further claimed that the defendant by colluding with

persons who have been already named in the disputed

gift deed got executed the said concocted gift deed by

playing fraud. He has specifically alleged that, the

disputed gift deed is secured by misrepresentation at

the hands defendant by assuring the plaintiff that his

signatures are required on the loan application. On

these set of grounds, the present suit for declaration

and for consequential relief of injunction came to be

filed.

4. On receipt of summons respondent-

defendant contested the proceedings. Respondent-

defendant specifically contended that there was some

dispute between the original plaintiff and his elder son

Ningappa and therefore original plaintiff Paramappa

started residing with defendant and out of love and

affection voluntarily decided to gift the suit schedule

property in favour of defendant. Therefore, original

plaintiff along with his wife Ningavva approached an

advocate and got the gift deed drafted and after

securing the witnesses has executed registered the

gift deed on 13.09.2011. It is also stated that the Sub-

Registrar, before registering the gift deed, read over

and explained the contents of the original gift deed to

the original plaintiff Paramappa.

5. The original plaintiff Paramappa to

substantiate his claim has examined himself as PW.1

and his wife Ningavva was examined as PW.2. The

plaintiff produced registered gift deed vide Ex.P.1.

Respondent-defendant examined herself as DW.1 and

examined one independent witness as DW.2 and also

relied on gift deed and got identified the LTM and

signatures through DW.2.

6. The Trial Court having meticulously

examined ocular evidence of original plaintiff

Paramappa and his wife has come to conclusion that

the allegation that the gift deed was secured by

defendant by practicing fraud is not substantiated and

proved by the original plaintiff. The Trial Court has

also taken note of categorical admissions given by

PW.2, who is none other than the wife of plaintiff

donor. She has admitted in an unequivocal terms that

the present suit is filed and she is deposing on the

instructions of her elder son Ningappa who has

advised and instructed to depose that, the gift deed

was secured by defendant by practicing fraud. Having

taken note of the significant details, the Trial Court

has recorded a categorical finding that the gift deed

executed by original plaintiff Paramappa was out of his

free will and wish and the same was executed

voluntarily. The alleged fraud is not established and

therefore proceeded to dismiss the suit.

       7.      The     First    Appellate      Court     having

independently        assessed     ocular     and   documentary

evidence has concurred with the findings of the Trial

Court. The First Appellate Court while independently

assessing the evidence on record has also taken note

of the fact that the attesting witness to the gift deed

were quite acquainted with original plaintiff

Paramappa. The First Appellate Court was also of the

view that the evidence on record clearly indicates that

original plaintiff Paramappa had worldly knowledge

and he was totally under the control of family affairs

as he was a Kartha. The First Appellate Court has also

taken note of the fact that wife of plaintiff who is

examined as PW.2 has admitted in an unequivocal

terms that the present suit is filed at the instance of

her elder son Ningappa. She has further admitted

that, that it is Ningappa, who has instructed her to

depose that they were taken to Sub-Registrar's Office

under the guise of securing loan and thereby have

played fraud and obtained the thumb impression on

the gift deed. It is in this background, the Appellate

Court has proceeded to concur with the findings and

conclusions arrived at by the Trial Court.

8. Heard learned counsel appearing for the

appellant and learned counsel appearing for the

respondent. Perused the judgments under challenge.

9. Both the Courts have concurrently held that

the gift deed executed by original plaintiff Paramappa

was out of his free will and has voluntarily gifted the

property in favour of his granddaughter of a

predeceased son. The clinching evidence on record

clearly reveals that his second son Nagaraj died in the

years 1985. Probably it is in this background, the

father thought it prudent to make some arrangements

in favour of his granddaughter.

10. The material on record would clearly

indicate that, no fraud is involved and the same is not

at all substantiated by the plaintiff. On the contrary,

what emerges from the record is that the present suit

is filed on account of pressure of his eldest son

Ningappa and this factual aspect is elicited in the

cross-examination of PW.2. She has admitted in

unequivocal terms that on the instructions of her son

Ningappa, the present suit is filed and she is in fact

directed and instructed to depose that both were

taken to Sub-Registrar's office under the guise of

securing a loan from the Bank.

11. Both the Courts have meticulously dealt

with the material on record and come to conclusion

that the alleged fraud as set up by plaintiff is not

proved by producing cogent and clinching evidence.

Therefore, the findings recorded by the Courts below

are based on legal rebuttal evidence and would not

warrant any interference at the hands of this Court

under Section 100 of the Code of Civil Procedure,

1908. No substantial question of law arises.

Accordingly, the appeal is dismissed.

Sd/-

JUDGE EM