Smt Subhadra vs Smt Jayanthi
2022 Latest Caselaw 13174 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 21ST DAY OF NOVEMBER 2022

                      BEFORE

     THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

           R. F. A. NO.828 OF 2011 (PAR)

BETWEEN:

SMT. SUBHADRA
AGED ABOUT 54 YEARS
W/O MURUGESAN
R/AT NO.276/C, AMBEDKAR NAGAR
B AND C BLOCK, DEVERJEEVANAHALLI
BANGALORE - 560045.
                                           ...APPELLANT
(BY SRI. ABHINAV R., ADVOCATE)

AND:

1.     SMT. JAYANTHI
       W/O LATE P RUKMANGATHAN
       AGED ABOUT 36 YEARS
       NO.276/9, AMBEDKAR NAGAR,
       B AND C BLOCK, DEVERJEEVANAHALLI,
       BANGALORE - 560045

2.     SRI THIYAGARAJ
       S/O LATE SMT AMUDA
       AGED ABOUT 31 YEARS, NO.276/9,
       AMBEDKARNAGAR, B AND C BLOCK,
       DEVERJEEVANAHLLI,
       BANGALORE - 560045
                                      ....RESPONDENTS
(BY SRI. C VIJAYA KUMAR, ADVOCATE FOR C/R)
                                           RFA No.828/2011

                           2




     THIS APPEAL IS FILED UNDER SECTION 96, R/W,
O-41 RULE 1 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 07.02.2011 PASSED IN O.S.3206/2004 ON
THE FILE OF THE XLIII-ADDL. CITY CIVIL AND SESSIONS
JUDGE, CCH-44, BANGALORE, DECREEING THE SUIT FOR
POSSESSION AND DECLARATION.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 11.10.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                      JUDGMENT

The appellant aggrieved by the judgment and

decree dated 07.02.2011, passed in O.S.No.

3206/2004 by the XLIII Addl. City Civil & Sessions

Judge, Bangalore (CCH-44), has filed this appeal.

2. Parties are referred to as per their ranking

before the Trial Court. The appellant is the defendant

and respondents are the plaintiffs before the Trial

Court.

3. Brief facts leading rise to filing of this appeal

are as under:

RFA No.828/2011

3.1. Plaintiffs filed a suit for declaration,

partition and separate possession. It is the case of

the plaintiffs that Late Sri. Perumal and Smt.

Seethamma had three children i.e., 2 daughters and 1

son, by name Smt. Amuda, Smt. Subhadra and Sri.

Rukmangathan. Plaintiff No.1 and 2 are the children

of Smt. Amuda. Plaintiff No.1 was married to Sri.

Rukmangathan, S/o Perumal and Seethamma. During

the year 1956, Seethamma had purchased a vacant

plot out of her own earnings and the said plot was

sold during February 1970. The suit property was

purchased by Seethamma in the name of Late

Perumal. The suit schedule property was sold by

A.Shanmugham through S.V.Rajendra in favour of

Perumal and Seethamma. Late Perumal was an

employee and served at Karnataka Appellate Tribunal

as a peon and retired on 29.10.1998. Late Perumal

and Seethamma were living in a common house in the

suit schedule property. The husband of plaintiff No.1, RFA No.828/2011

i.e., Rukmangathan died on 21.07.1999 without

issues. After the demise of her husband, the

defendant intentionally created problems and started

to harass plaintiff No.1 mentally and physically and

forcibly sent her out of the suit schedule property.

The plaintiffs have lodged a complaint before the Civil

Organization. It is pleaded that Late Perumal was

addicted to alcohol and was under the influence of

alcohol and he was not having sound mind due to his

old age and intoxication. Defendant, by taking undue

advantage, took Late Perumal to sub-registrar office

on 15.03.2003 and out of fraud and

misrepresentation, got executed a gift deed in her

favour. After lapse of one month, Perumal died on

16.04.2003. The gift deed is not binding on the

plaintiffs. The plaintiffs are entitled for share in the

suit schedule property. The plaintiffs requested the

defendant to effect partition, but the defendant

refused to effect the partition. Hence cause of action RFA No.828/2011

arose for the plaintiffs to file the suit for declaration,

partition and separate possession.

3.2. The defendant filed written statement

denying that Smt. Seethamma had purchased the plot

in the year 1956 out of her own earnings. It is

admitted that the said plot was sold for valuable

consideration and also admitted that the suit schedule

property was purchased by Late Perumal under

registered sale deed. From the date of purchase, the

father of the defendant was in possession and

enjoyment of the suit schedule property. It is pleaded

that the husband of plaintiff No.1 was in the habit of

buzzing ever since the date of his attaining majority.

It is further contended that plaintiff No.1 had deserted

her husband during his lifetime. After his death,

plaintiff No.1 did not attend the cremation of her

husband. Defendant had performed the funeral

ceremony of her husband. The father of the RFA No.828/2011

defendant was aged and defendant was looking after

her father. Her father, out of love and affection,

executed a gift deed in favour of the defendant on

15.03.2003, and handed over the vacant physical

possession of the suit schedule property to the

defendant. Since the defendant is in possession and

enjoyment of the suit schedule property as an

absolute owner, khatha was transferred in the name

of the defendant. Defendant's father was the absolute

owner of the suit schedule property and it was his

self-acquired property and not ancestral property of

the plaintiffs and defendant. It is denied that the

defendant by taking undue advantage of intoxication

condition of her father, by playing fraud and

misrepresentation, got executed the gift deed. It is

denied that the plaintiffs have got half share in the

suit schedule property by way of succession. There is

no cause of action for filing the suit. Hence prayed to

dismiss the suit.

RFA No.828/2011

3.3. The Trial Court, on the basis of pleadings,

framed the following issues:

1. Whether the defendant proves that suit schedule property was self-acquired property of her father?

2. Whether defendant proves that her father by executing a registered gift deed dated 15.03.2003 had gifted the suit property in her favour and hence she has become absolute owner of the same?

3. Whether plaintiffs prove that the gift deed dated 15.03.2003 executed by late Sri. Perumal, under which he has gifted the suit property in favour of defendant is not binding on them?

4. Whether defendant proves that the suit of plaintiffs is bad for non-joinder of necessary parties?

5. Whether valuation of the suit made by plaintiff for the purpose of payment of Court fee is proper and Court fee paid on the plaint is proper and sufficient?

RFA No.828/2011

6. Whether plaintiffs prove that they are entitled to 1/3rd share in the suit property?

7. Whether the plaintiffs are entitled to the relief sought for?

8. What decree or order?

3.4. Plaintiffs in support of their case examined

plaintiff No.1 as PW-1 and examined two witnesses as

PW-2 and PW-3 and got marked documents as per

Ex.P1 to Ex.P9. Defendant examined herself as DW-1

and examined one witness as DW-2 and got marked

documents as per Ex.D1 to Ex.D14. The Trial Court

after recording the evidence and considering the

material on record, held that the defendant has

proved that the suit schedule property was the self-

acquired property of her father and failed to prove

that her father executed a registered gift deed dated

15.03.2003 in her favour and she became the

absolute owner of the same and further held that the RFA No.828/2011

defendant has failed to prove that the suit is bad for

non-joinder of necessary parties and answered issue

No.5 holding that the valuation of the suit made by

the plaintiffs for the purpose of payment of Court fee

is proper and held that the plaintiffs are entitled for

share in the suit schedule property and consequently

decreed the suit of the plaintiffs declaring the gift

deed dated 15.03.2003, as null and void and held that

the plaintiff No.1 is entitled for partition and separate

possession of her 1/3rd share in the suit schedule

property by metes and bounds. Further held that the

plaintiffs 1 and 2 being the legal heirs of Smt. Amuda

are entitled to take 1/3rd share by way of partition and

separate possession in the suit schedule property

along with the other legal heirs of Smt. Amuda.

3.5. The defendant aggrieved by the preliminary

decree passed by the Trial Court, has filed this appeal.

RFA No.828/2011

4. Heard learned counsel for the defendant and

learned counsel for the plaintiffs.

5. Learned counsel for the defendant submits

that when the Trial Court has answered issue No.1 in

affirmative holding that the suit schedule property was

the self-acquired property of father of defendant, the

Trial Court ought to have answered issue No.2 in

affirmative. He submits that the defendant in order to

prove the execution of registered gift deed dated

15.03.2003, examined the attesting witness i.e., DW-

2. The plaintiffs failed to cross-examine DW-2. The

Trial Court has taken the cross-examination of DW-2

as NIL. He further submits that the plaintiffs have not

produced any records to show that the father of the

defendant was drunkard and was always under

intoxication. He further submits that the plaintiffs

have filed an application i.e., I.A.Nos.11 and 12 for

recalling DW-1, but have not filed any application for RFA No.828/2011

recalling DW-2. He submits that the Trial Court

committed an error in discarding the evidence of DW-

2 and also committed an error in recording a finding

that the defendant failed to examine the attesting

witness. He submits that when the plaintiffs have

made an allegation against the defendant in regard to

fraud, misrepresentation, the burden is on the

plaintiffs to establish the same. On the contrary, the

Trial Court has placed the burden on the defendant.

Hence he submits that the Trial Court has committed

an error in decreeing the suit of the plaintiffs. The

impugned judgment passed by the Trial Court is

arbitrary and erroneous. Hence on these grounds,

prays to allow the appeal.

6. Per contra, learned counsel for the plaintiffs

submits that the defendant by playing fraud,

misrepresentation, etc., has obtained registered gift

deed in her favour. He further submits that the suit RFA No.828/2011

schedule property is the joint family property of the

plaintiffs and defendant. He submits that the plaintiffs

being the legal representatives of deceased Perumal

are entitled for share in the suit schedule property.

Further in order to buttress his argument, he has

placed reliance on the judgment of the Hon'ble Apex

Court in the case of SONAMATI DEVI & ORS. VS.

MAHENDRA VISHWAKARMA & ORS., in Civil Apeal

No.5717/2021, disposed on 15.09.2021 and in the

case of ARUNACHALA GOUNDER (DEAD) BY LRS. VS.

PONNUSAMY & ORS., in Civil Appeal No.6659/2011,

disposed on 20.01.2022. Hence on these grounds,

prays to dismiss the appeal.

7. Perused the records and considered the

submissions made by learned counsel for the parties.

     8.     The    following    points   arise   for   my

consideration:
                                          RFA No.828/2011

(1) Whether the plaintiffs prove that the suit schedule property is the joint family property of the plaintiffs and defendant? (2) Whether the plaintiffs prove that the defendant obtained the registered gift deed dated 15.03.2003, by practicing fraud, misrepresentation and undue influence?

(3) Whether the defendant proves that her father executed registered gift deed out of love and affection in her favour and she became the absolute owner of the same?

(4) Whether the defendant has made out grounds to interfere with the impugned judgment and decree?

(5) What order or decree?

9. Point No.1: I have gone through the records

and heard learned counsel for the parties at length.

So far as the legal proposition is concerned, there is

no gain saying that whenever a suit for partition and

determination of share and possession there of is RFA No.828/2011

filed, the initial burden is on the plaintiff to show that

the suit property was a joint family/ancestral property

and after initial discharge of the burden, it shifts on

the defendant to show that the property claimed by

him/her was not joint family/ancestral property. This

settled preposition emerges from various decisions of

the Hon'ble Apex Court right from 1954 onwards.

10. The Hon'ble Apex Court in the case of

APPASAHEB PEERAPPA CHANDGADE VS. DEVENDRA

PEERAPPA CHANDGADE reported in AIR 2007 SC 218,

held that "proof of the existence of a joint family does

not lead to the presumption that property held by any

member of the family is joint". Let me consider the

present case in hand. It is the case of the plaintiffs

that they are entitled for share in the suit schedule

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

plaintiff No.1 was examined as PW-1. She has

reiterated the averments made in the plaint in her RFA No.828/2011

examination-in-chief. In the course of cross-

examination, she has admitted that during the lifetime

of father of defendant, himself, his wife Seethamma,

his son and PW-1 were all residing in a common house

in the schedule property. The husband of plaintiff

No.1 died on 21.07.1999, without any issues and the

suit schedule property is the joint family property of

plaintiffs and defendant. She has deposed that she is

residing near Thanisandra Bus Stop in a rented house

and her mother died in the year 1986 when PW-1 was

about 10 years old. She has denied that her father

was looking after his children i.e., Smt.Amuda, the

husband of PW-1 and also the present defendant. She

admits that her grandfather was working in KAT. She

admits the execution of registered gift deed by her

grandfather in favour of defendant and she also

admits that one Erachappa and Elumalai have signed

on the gift deed as attesting witnesses.

RFA No.828/2011

11. Plaintiff No.2 examined himself as PW-2 and

he has reiterated the examination-in-chief of PW-1.

In the course of cross-examination, he admits that his

mother Smt. Amuda was the first wife of his father

and second wife of his father is Smt. Koteshwari.

Smt. Amuda has got 4 children i.e., plaintiffs 1 and 2

and Smt. Vasanthi and Tenmani are the other

daughters and they are still alive. He has deposed

that he has no documents to show that his maternal

grandmother had purchased the property and sold the

same. He admits that his maternal grandmother was

not doing any business in manufacturing bricks.

12. The plaintiffs have produced registered gift

deed marked as Ex.P1. Ex.P1 discloses that the father

of defendant purchased the suit schedule property out

of his income derived from the service. Plaintiffs,

except pleading that the suit schedule property is a

joint family property, have not produced any other RFA No.828/2011

documents to establish that it was purchased out of

joint family fund and further failed to establish that

prior to purchase of the suit property, there was a

nucleus. The plaintiffs have failed to prove that the

suit schedule property is the joint family property of

the plaintiffs and defendant. After a careful perusal of

the records, this Court is of the opinion that suit

property is the self acquired property of late Perumal.

In view of the above discussion, I answer point No.1

in negative.

13. Point No.2: It is the case of the plaintiffs

that the defendant got the registered gift deed

executed in her favour by playing fraud,

misrepresentation and undue influence on her father.

When the plaintiffs have taken a specific contention

regarding undue influence, the burden to prove the

same, lies on the plaintiffs. It is necessary to consider

Order VI Rule 4 of CPC which reads as under:

RFA No.828/2011

"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."

14. From the perusal of Order VI Rule 4 of CPC,

when the party pleads on misrepresentation, fraud or

breach of trust, willful default or undue influence, etc.,

in such cases, particulars are necessary in the plaint.

In the present case, the plaintiffs except pleading that

deceased Perumal was addicted to alcohol, the plaint

did not contain full particulars of alleged fraud,

misrepresentation and undue influence. The plaint

cannot be said to be the averments of fraud, etc., in

the eye of law within the meaning of Order VI Rule 4

of CPC. Further no evidence has been adduced by the RFA No.828/2011

plaintiffs in order to establish that the defendant by

giving him liquor and during intoxication she got

registered the said document. The plaintiffs are

admitting about the execution of registered gift deed

in favour of the defendant, but their contention is only

that defendant by providing liquor to her father, got

executed a registered gift deed.

15. It is necessary to consider Sec.16 of the

Indian Contract Act, 1872, onus to prove undue

influence, fraud and misrepresentation is on the

plaintiffs. 'Undue influence', 'fraud' and

'misrepresentation' are defined under Sections 16, 17

and 18 of the Act of 1872, as under:

16. "Undue influence" defined.--(1) A contract is said to be induced by "undue influence" where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.

RFA No.828/2011

(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another--

(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other;

       or
       (b) where he makes a contract with a
       person      whose        mental   capacity   is

temporarily or permanently affected by reason of age, illness, or mental or bodily distress.

(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other.

Nothing in this sub-section shall affect the provisions of section 111 of the Indian Evidence Act, 1872 (1 of 1872)."

RFA No.828/2011

"17. "Fraud" defined.--"Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:--

(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

(2) the active concealment of a fact by one having knowledge or belief of the fact; (3) a promise made without any intention of performing it;

(4) any other act fitted to deceive;

(5) any such act or omission as the law specially declares to be fraudulent.

18. "Misrepresentation" defined.-- "Misrepresentation" means and includes--

(1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;

(2) any breach of duty which, without an intent to deceive, gains an advantage to the person RFA No.828/2011

committing it, or any one claiming under him; by misleading another to his prejudice, or to the prejudice of any one claiming under him; (3) causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement."

The allegations made by the plaintiffs in the

plaint does not fall within the definition of undue

influence, fraud and misrepresentation, as per

Sections 16, 17 and 18 of the Act of 1872.

16. The plaintiffs have not lead any independent

evidence to establish that late Perumal was addicted

to alcohol. The plaintiffs have failed to establish that

defendant got executed registered gift deed by playing

fraud, misrepresentation and undue influence. As

observed above, the plaintiffs have failed to establish

that the registered gift deed was executed in favour of

defendant during intoxication. In view of the above

discussion, I answer point No.2 in negative.

RFA No.828/2011

17. Point No.3: It is the case of the defendant

that her father executed a registered gift deed in her

favour. The burden of proving the execution of

registered gift deed by late Perumal in favour of

defendant is on the defendant. In order to prove the

execution, the defendant was examined herself as

DW-1. She has stated in her examination-in-chief

that the suit property is the self acquired property of

late Perumal and he was aged and was looked after by

the defendant and out of love and affection, her father

late Perumal executed registered gift deed on

15.03.2003. The defendant accepted the gift. On the

strength of the registered gift deed, defendant

submitted an application for change of Khata.

Accordingly, the authorities after due procedure,

transferred the property in the name of defendant. In

the cross-examination of this witness, except denial,

nothing has been elicited.

RFA No.828/2011

18. Defendant examined one Erachappa who is

the attesting witness to Ex.D1 i.e., registered gift

deed. He was examined on behalf of the plaintiffs as

PW-3, but he did not turn up for cross-examination,

hence the evidence of PW-3 was discarded by the trial

Court. He was again examined by the defendant as

DW-2. He has stated in his examination-in-chief that

defendant's father is intending to execute a registered

gift deed and requested him to join at sub-registrar

office. The defendant along with two ladies and their

father had come to Sub-Registrar Office. Thereafter

gift deed was prepared and the document was got

registered.

19. Ex.D1 was confronted to DW-2 and he has

identified his signature on Ex.D1 and his signature

was marked as Ex.D1(c), he also identified the

signature of another attesting witness on Ex.D1. He

has stated that deceased Perumal signed on Ex.D1 in RFA No.828/2011

his presence and further stated that at the time of the

registration of the document, the Sub-Registrar asked

the father of defendant whether she accepts the gift

deed and defendant has accepted the gift deed.

Learned counsel for the plaintiff was absent as on the

date of evidence of DW-2. The trial Court has taken

the cross-examination as 'NIL'. The evidence of DW-2

is not challenged by the plaintiffs by cross-examining

DW-2. Hence the defendant has taken all the steps to

prove the execution and registration of gift deed i.e.,

Ex.D1 by examining the attesting witness. The

plaintiffs have filed applications in I.A.Nos.11 and 12

to recall DW-1 for further cross-examination. The said

applications came to be allowed with cost of Rs.100/-

on 12.11.2010. Though an application was filed for

recalling DW-1, but due to inadvertence, it is

mentioned as DW-2 in the order sheet dated

12.11.2010, and matter was adjourned to

01.12.2010. On 01.12.2010 DW-1 was present, RFA No.828/2011

learned counsel for the plaintiffs further cross-

examined DW-1. On 12.01.2011 defendant and her

counsel were absent and hence the trial Court has

taken further evidence as closed and posted the

matter for argument.

20. From the perusal of the records, the

plaintiffs have not filed any application for recalling

DW-2 for the purpose of cross-examination. The trial

Court committed an error in discarding the evidence of

DW-2. The trial Court has disbelieved Ex.D1 solely on

the ground of disinheritance of other legal heirs . The

defendant has explained the reasons for execution of

registered gift deed in her favour. As the defendant

had taken care of her father during his old age, he

had gifted the said property in her favour out of love

and affection and further during the course of cross-

examination of DW-1, she has stated that she was

looking after her father during his old age. It is not RFA No.828/2011

the case of plaintiffs that plaintiffs were looking after

deceased Perumal during his old age.

21. The execution and registration of gift deed

in favour of defendant is not disputed. There is a

presumption that a registered document is validly

executed. A registered document, therefore, prima-

facie would be valid in law. The onus of proof thus

would be on a person who leads evidence to rebut the

presumption. In the instant case, plaintiffs have not

been able to rebut the said presumption. The said

view is supported by the decision of the Hon'ble Apex

Court in the case RATTAN SINGH AND OTHERS V.

NIRMAL GILL AND OTHERS in Civil Appeal No.3681-

3682 of 2020, dated 16.11.2020 held that "Registered

document is presumed to be genuine. Onus to prove

otherwise is on the person who challenges it." In the

present case, the plaintiffs are challenging the

registered gift deed executed in favour of the RFA No.828/2011

defendant. The Trial Court without considering the

reasons assigned by the defendant for execution of

registered gift deed Ex.D1 only in favour of the

defendant, has disbelieved Ex.D1. Thus, considering

the evidence of DW-1 and DW-2, the defendant has

proved the execution and registration of gift deed in

her favour. In view of the above discussion, I answer

point No.3 is affirmative.

22. Points No.4 & 5: The Trial Court has

recorded a finding that the suit schedule property is

not the joint family property of the plaintiffs and

defendant. The said finding has not been challenged

by the plaintiffs. The said finding has attained finality.

The Trial Court has failed to consider the evidence of

DW-1 and DW-2 and wrongly recorded a finding that

the defendant has failed to prove the execution of the

registered gift deed. As discussed above, the

defendant has proved the execution of registered gift RFA No.828/2011

deed. The Trial Court has committed an error in

decreeing the suit of the plaintiffs. Thus, the

judgment and decree passed by the Trial Court is

arbitrary and erroneous and same is liable to be

interfered by this Court. The judgment relied on by

the plaintiffs is not applicable to the case in hand. In

view of the above discussion, I answer point No.4 in

affirmative and proceed to pass the following:

ORDER

The appeal is allowed.

The judgment and decree passed by the Trial Court dated 07.02.2011 in O.S.3206/2004 is set aside. Consequently, the suit filed by the plaintiffs is dismissed.

No order as to costs.

SD/-

JUDGE

RD