Karnataka High Court
Sri.Ramappa S/O Hanamant Rugi vs Smt.Gangawwa @ Shantawwa W/O Nagappa ... on 21 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21st DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO.100158 OF 2020
BETWEEN:
SRI. RAMAPPA S/O. HANAMANT RUGI
AGE: 29 YEARS, OCC: AGRICULTURE,
R/O: KASABA JAMBAGI, TQ: MUDHOL,
DIST: BAGALKOT-587313.
...APPELLANT
(BY SRI.SHIVANAND MALASHETTY, ADVOCATE FOR
SRI.SHIVARAJ P.MUDHOL, ADVOCATE)
AND:
1. SMT. GANGAWWA @ SHANTAWWA
W/O. NAGAPPA BHUMARATI,
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O: KASABA JAMBAGI, TQ: MUDHOL,
DIST: BAGALKOT-587313.
2. SMT. KAMALAWWA W/O. KAREPPA SARAVI
AGE: 46 YEARS, OCC: HOUSE HOLD WORK,
R/O: KASABA JAMBAGI, TQ: MUDHOL,
DIST: BAGALKOT-587313.
3. SMT. RATNAWWA W/O. MALLAPPA HIREKURABAR
AGE: 41 YEARS, OCC: HOUSE HOLD WORK,
R/O: BELLUBBI, TQ: VIJAYAPUR,
DIST: VIJAYAPUR-562135.
...RESPONDENTS
(BY SMT.DEEPA P.DODDATTI, ADVOCATE FOR
SRI.PAVAN B.DODDATTI, ADVOCATE FOR R1;
SRI.MAHANTESH R.PATIL, ADVOCATE FOR R2 AND R3)
2
THIS RFA IS FILED UNDER SECTION 96 OF C.P.C.,
AGAINST THE JUDGMENT AND DECREE DATED 11.10.2019
PASSED IN O.S.NO.108/2016 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
MUDHOL, DECREEING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
THIS RFA HAVING BEEN HEARD AND RESERVED ON
15.12.2023 COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, H.P.SANDESH, J., DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the appellant
and the learned counsel appearing for the respondents.
2. The parties are referred in their original ranking
as plaintiff and defendants as before the Trial Court in order
to avoid confusion and also for the convenience of this
Court.
3. The factual matrix of the case of the plaintiff
before the Trial Court is that while seeking the relief of
partition and separate possession, it is contended that the
plaintiff herself and defendant Nos.2 to 4 are the children of
defendant No.1 and her deceased husband-Hanumant. The
said Hanumant died on 16.04.2009 leaving behind the
parties in the suit as his legal heirs. It is contended that the
plaintiff and defendants are constituted Hindu undivided joint
family and the suit schedule properties are their ancestral
and joint family properties. During the life time of Hanumat,
not after his death, no partition has taken place between the
parties. It is contended by the plaintiff that due to
differences of opinion in between them, it is not possible for
her to continue in the joint status and hence she has filed
the suit seeking the relief of 1/5th share of partition in the
suit schedule properties. Inspite of demand made by the
plaintiff, the defendants have refused to effect the partition
and hence field the suit before the Trial Court.
4. In pursuance of suit summons, defendant Nos.1
to 4 appeared before the Court through their respective
counsels. The defendant No.4 had filed written statement
and the same has been adopted by the defendant Nos.1 to
3. The defendant No.4 in the written statement made the
counter claim and also admitted the relationship and denied
the rest of the averments made in the plaint. It is contended
that the suit schedule properties are the self acquired
properties of his father and after his death, the names of all
legal heirs are mutated as per M.R.No.187/2009-10 and
thereafter on 05.09.2012 himself, other defendants including
the plaintiff have effected the partition. It is contended that
in the said partition, the plaintiff, defendant Nos.2 and 3
have received cash of Rs.2,00,000/- jointly and defendant
No.1 was allotted land bearing R.S.No.144/3 and remaining
lands bearing R.S.No.196/3 and R.S.No.100/3 were allotted
to his share and accordingly waradi was submitted by them
and as per the partition deed, his name was mutated in
M.R.No.31/2012--13. It is also the contention of the 4th
defendant that the defendant No.1 has executed gift deed in
respect of R.S.No.144/3, since she was under the care and
custody of defendant No.4 and out of her love and affection,
she has executed the same and accordingly M.R.No.H-
60/2015 was certified and hence, the defendant No.4 is the
exclusive owner of all the suit schedule properties. The
plaintiff is not having any share over the suit schedule
properties and hence prayed the Court to dismiss the suit
and allow the counter claim. The plaintiff filed rejoinder to
the counter claim of the defendant No.4 and she has denied
the entire contention of the defendant No.4 and took the
specific stand that she has not at all received any amount as
alleged by the defendant No.4 and prayed the Court to
dismiss the counter claim and decree the suit.
5. Based on the pleadings of the parties, the Trial
Court has framed the following issues and additional issue
which are mentioned herein below.
ISSUES
1) Whether plaintiff proves that, the suit schedule
properties are the ancestral and joint family
properties to her and defendants?
2) Whether the defendant No.4 proves that, suit
is bad for non-inclusion of all the ancestral
properties in hotch-pot?
3) Whether the plaintiff is entitled for the relief
sought for?
4) What Order or Decree?
ADDITIONAL ISSUE
1) Whether defendant No.4 proves that exclusive
owner of the land bearing R.S.No.144/3, 196/3
and 100/3 on basis of the partition deed and
gift deed executed by defendant No.1?
6. The plaintiff in order to support her claim
examined GPA holder who is her husband as PW1 and got
marked Ex.P1 to Ex.P5 and examined one witness as PW2.
The defendant No.4 examined himself as DW1 and got
marked Ex.D1 to Ex.D12 and got examined witnesses as
DW2 and DW3 and also examined scribe of the gift deed as
DW4 and scribe of the partition deed as DW5.
7. The Trial Court having considered both oral and
documentary evidence answered issue No.1 as affirmative in
coming to the conclusion that suit schedule properties are
ancestral and joint family properties of the parties. The Trial
Court answered issue No.2 as negative in coming to the
conclusion that the defendant No.4 has not proved that the
suit is bad for non-inclusion of all the ancestral properties.
The Trial Court answered the additional issue No.1 as
negative. The claim of the defendant No.4 is that he is the
exclusive owner of all the suit schedule properties based on
partition deed and gift deed. The Trial Court answered issue
No.3 as affirmative in coming to the conclusion that plaintiff
is entitled for 1/5th share in the suit schedule properties but
in the operative portion held the plaintiff is entitled for 1/5th
in the suit schedule properties, but in the operative portion
held the plaintiff is entitle for 1/4th share. The counter claim
of the defendants was dismissed.
8. Being aggrieved by the judgment and decree of
the Trial Court, the present appeal is filed by the defendant
No.4. In the appeal, the main contention urged by the
appellant/defendant No.4 is that the judgment and decree
granted by the Trial Court is not sustainable in law and the
same is liable to be set-aside. It is contended that the Court
below committed serious error in holding that suit schedule
properties are ancestral properties and contention of the
appellant that the suit properties are self acquired properties
of his father and not been considered by the Trial Court. The
counsel also would vehemently contend that there was a
prior partition between the plaintiff and defendants as per
Ex.D3 and inspite of material documents and pleadings on
record which discloses that there was a partition and the
parties have been acted upon and the Trial Court committed
an error in coming to a conclusion that there was no such
partition and impugned judgment of the Trial Court is
erroneous.
9. The counsel would vehemently contend that
consequent upon the partition dated 05.09.2012, mutation
entry came into existence in the name of son and mother.
The counsel also would vehemently contend that when the
plaintiff relinquished her right along with other defendants
by receiving an amount of Rs.2,00,000/-, the Trial Court
committed an error. The counsel also would submits that in
the gift deed dated 29.06.2016, there was a reference made
by the defendant No.1 that she got the property by way of
'Watni' and the Trial Court erroneously comes to the
conclusion that unregistered partition cannot be relied upon.
The counsel would vehemently contend that granting of ¼th
share is erroneous when the gift deed is executed by the
mother and proved the gift deed by examining the witnesses
PW2 to PW4 and hence it requires interference of this Court.
10. Per Contra, the counsel appearing for the
respondent No.1/plaintiff would vehemently contend that
when the claim was made based on the unregistered
partition and the same has not been rightly relied upon by
the Trial Court. The counsel would vehemently contend that
no proof of receipt of amount as contended by the defendant
No.4. The counsel would vehemently contend that in cross-
examination of DW1, he has admitted that no share was
allotted to mother and sisters. Even the DW2 has also
admitted that in order to deprive the rights of sisters, the
documents are created. The counsel also would submits that
while executing gift deed, the plaintiff was not present and
also contend that immediately when the gift deed was
executed, the suit was filed. The counsel would vehemently
contend that plaintiff name is found as jointly after the death
of the father Hanumant. Though it is claim that there is a
registered partition and the same is not produced before the
Trial Court and hence the Trial Court rightly evaluated the
evidence available on record and not committed any error.
11. The counsel appearing for the defendant Nos.2
and 3 in his argument vehemently contend that the mother
was residing along with the appellant/defendant No.4 and
plaintiff and defendant Nos. 2 and 3 have received an
amount of Rs.2,00,000/- jointly and the same has been
admitted by defendant Nos.2 and 3. It is suggested to the
PW1 in the cross-examination and the same was denied. The
PW1 is the husband of PA holder of plaintiff but the plaintiff
did not enter into the witness box and hence, the Court
cannot give credence to the evidence of PW1. The counsel
also would submits that PW2 who has been examined on
behalf of the plaintiff admitted the partition. The Defendant
Nos.2 and 3 have adopted the written statement of
Defendant No.4. The material clearly discloses that there
was a partition and there after mother also executed the gift
deed in favour of defendant No.4.
12. In reply to the argument of the plaintiff's counsel,
the counsel appearing for the appellant would contend that
the gift deed was executed on 29.03.2016 and the suit was
filed on 14.09.2016 and in the suit, they have not challenged
the gift deed. The PW1 also admits the very execution of the
gift deed and hence it requires interference.
13. Having heard the appellant's counsel and also the
counsel appearing for the respondents and also the grounds
urged in the appeal as well as respective oral submission
and on perusal of material available on record, the points
that would arise for consideration of this Court are:
1) Whether the Trial Court committed an error in
not accepting earlier partition?
2) Whether the Trial Court committed an error in
granting ¼th share in not accepting the gift deed and
whether it requires interference?
2) What Order?
POINT Nos.1 to 3:
14. Having heard the respective counsels and also on
perusal of material available on record, the Trial Court has
framed the issue whether the plaintiff proves that suit
schedule properties are the ancestral and joint family
properties to her and defendants. It is not in dispute that the
defendant No.1 is the wife of Hanumant and plaintiff,
defendant Nos.2 to 4 are the children of Hanumant and 1st
defendant. It is also emerged in the evidence that the
Ex.D1-M.R.No.1458 is clear that Hanumantha, Shivappa
Rugi S/o Shiddappa Rugi have jointly purchased
R.S.No.144/3 from Jayasingh Baba Singh under registered
sale deed dated 05.09.1882. Having perused the document
at Ex.D1-M.R.No.1458/ is clear that both of them have
jointly purchased the property. It is the contention of the
defendant Nos.1 and 4 that the property is the self acquired
property of deceased Hanumant but, in order to prove the
same, no document is placed before the Court.
15. It is also important to note that after the death of
father Hanumant, the plaintiff and defendant Nos.1 to 4 are
succeeded to the suit property and accordingly
M.R.No.187/2009-10 was certified and the names of the
plaintiff and defendant Nos.1 to 4 are mutated with respect
to suit properties. The fact that father also died in the year
2009 is not in dispute. Hence, it is clear that suit schedule
properties are ancestral and joint family properties of the
plaintiff and defendant Nos.1 to 4. It is also important to
note that the PW1 in his evidence has deposed that suit
properties are acquired by Hanumant from his ancestors and
DW1 is also admitted that suit properties are acquired by his
father. The Trial Court having taken note of both oral and
documentary evidence and particularly the admission
available on record, rightly comes to the conclusion that the
suit schedule properties are ancestral and joint family
properties. The defendant No.4 though contend that, the
same is self acquired property of father-Hanumant, in order
to establish the same, no document is placed before the Trial
Court and hence we do not find any error committed by the
Trial Court in coming to the conclusion that suit schedule
properties are ancestral and joint family properties by
answering issue No.1 as affirmative.
16. Now, the very contention of the defendant No.4
that suit is bad for non-inclusion of all the ancestral
properties to hotch-pot and though the defendant No.4 took
the specific defence that the plaintiff has not included all the
ancestral properties and defendant No.4 has not produced
any oral evidence and documentary evidence and nothing is
stated by the defendant No.4 that which are the other
properties which have not been included in the suit. The
burden is on the defendant to prove when the specific
averments are made in the written statement and no
document is placed on record that the family is having other
properties and the same has not been included in the suit.
Hence, the Trial Court has rightly answered the issue No.2
as negative in coming to the conclusion that the defendants
have not proved the same.
17. The other contention of the defendants that there
was a partition among the plaintiff and defendants and also
a gift deed was executed by the mother in respect of
R.S.No.144/3. The Trial Court has also framed an additional
issue in view of specific defence taken by the defendant
No.4. When the defendant No.4 has taken the specific
defence of the partition and execution of gift deed, he has to
prove the same. The defendant No.4 in order to prove the
factum of earlier partition, relied upon the document of
M.R.187/2009-10 and the same reflects that the family
members have succeeded to the property left by their father
by making entries in the revenue records in terms of Ex.P5
and Ex.D2.
18. It is also the contention that in the said partition,
all of them are parties and the said partition was taken place
on 05.09.2013. In the said partition, defendant Nos.2 and 3
and plaintiff jointly received an amount of Rs.2,00,000/- and
in the said partition property bearing R.S.No.144/3 was
allotted to the mother and remaining two properties were
allotted to defendant No.4 and mutation was effected as per
M.R.No.31/2012-13. It is also the claim of the defendant
No.4 that defendant No.1 was residing with him and he has
taken care of the mother and hence his mother for love and
affection has executed the gift deed in respect of property
which was allotted to her i.e., R.S.No.144/3 and accordingly,
the same was certified in M.R.No.H60/2015 and as a result
he became absolute owner in respect of entire suit schedule
properties.
19. The PW1 was examined and he denied entire
contention of the defendant and nothing is elicited in the
cross-examination of PW1 with regard to partition as well as
'Watni' i.e., alleged partition. The PW1 has denied the
suggestion that there was a partition in the year 2012 and
also suggestion was made that his wife also signed the
'Watni' dated 05.09.2012 in the presence of elders and the
same was also denied. It is suggested to the PW1 that
defendant No.1 executed gift deed based on the partition in
favour of defendant No.4 and the witness denies that he is
not aware of the same. The PW1 volunteers that his wife has
not signed any partition and they may taken the signature of
some other person and not his wife but he came to know
about the same in the year 2016. The plaintiff has also
further examined by filing additional affidavit and was
subjected to cross-examination. In the cross-examination of
PW1, he admitted that 1st defendant was residing along with
the 4th defendant and also admits that 1st defendant was
taken care of by the 4th defendant and also admitted that
plaintiff, defendant Nos.2 and 3 are married and they are
leading their life in their respective matrimonial house.
20. The other witness is PW2 and the PW2 in the
affidavit, re-iterated the claim of the plaintiff and this
witness was subjected to cross-examination and in the
cross-examination admits that after the death of Hanumant,
the names of plaintiff and defendants are entered into the
revenue documents. It is also admitted that after the death
of Hanumant, defendant No.1 and their 4 children have
divided their family. It is also suggested that in Sy.No.144/3,
4 acres was allotted to defendant No.1 and other two
properties are allotted to defendant No.4, but contended
that no share was given to the plaintiff, but admits that after
the said partition, the same has been entered in the revenue
documents and also the plaintiff has not given any objection
in making the entries of defendant Nos.1 and 2 in the
revenue records. It is also admitted by the PW2 that in view
of the gift deed, her property was transferred in favour of
defendant No.4 in respect of R.S.No.144/3.
21. The other witness is DW1 i.e., defendant No.4
and he re-iterated the contention of the written statement in
his affidavit, but admits in the cross-examination that after
the death of the father, property was mutated in the name
of plaintiff and defendants, but he claims that there was a
registered partition deed and he can produce the same, but
not produced the same. He admits that in terms of the said
alleged 'Watni' all the properties are transferred to his name.
He also categorically admits that for having paid the amount
of Rs.2,00,000/-, he has not produced any document, but he
claims that there was 'Watni' between him and his mother
and sisters. He admits that except that 'Watni' no other
documents came into existence. It is also important to note
that when the suggestion was made that he had availed the
loan from the bank in order to trouble his mother and
sisters, and the same was admitted in the cross-
examination.
22. The other witness is DW2 according to him, he
was present at the time of partition and an amount of
Rs.2,00,000/- was paid and out of that amount,
Rs.1,00,000/- was paid to the plaintiff and Rs.50,000/- each
was given to the defendant Nos.2 and 3 and also he speaks
with regard to the execution of gift deed. The DW2
categorically admits that partition deed is not registered and
in the cross-examination of DW2, it is elicited that he is
having good relationship with defendant No.4 and if any
difficulty, he used to approach the defendant No.4. He also
admits that defendant No.4 requested him to give evidence
and also the affidavit was prepared at the instructions of
defendant No.4. He was present at the time of registration of
gift deed and categorically admits that while executing the
gift deed, plaintiff, defendant Nos. 2 and 3 were not present.
He admits that in respect of suit schedule properties, no
registered partition was effected. He categorically admits
that in order to avoid giving share to plaintiff, defendant
Nos.2 and 3 and he himself and defendant No.4 have
prepared a false partition.
23. The other witness is DW3 who also claims that
the gift deed was executed in his presence in respect of
R.S.No.144/3 and in the cross-examination also he admits
that suit schedule properties are belongs to the 1st
defendant's family. He also admits that the affidavit was
prepared at the instructions of defendant No.4 and he is not
having personal knowledge. He is having good acquaintance
with himself and 4th defendant. He came to give evidence
when the defendant No.4 requested him to come and give
evidence.
24. The other witness is DW4 who is the scribe of
Ex.D12 i.e., gift deed and he was also subjected to cross-
examination and in the cross-examination he admits that
while preparing the document, he should see the revenue
document, how the property came to the executant of the
gift and he did not make any such enquiry.
25. The other witness is DW5, in order to prove the
partition and he also says that out of Rs.2,00,000/- an
amount of Rs.1,00,000/- was given to plaintiff and
Rs.50,000/- each was given to defendant Nos.2 and 3 and
based on the instructions, he prepared the document of
Ex.D11. But, in the cross-examination he categorically
admits that in his presence no amount was given to plaintiff
and defendant Nos.2 and 3.
26. Having re-analyzed both oral and documentary in
respect of the partition as well as the gift deed is concerned,
admittedly the partition deed was not registered. It is also
the claim of the defendant No.4 that plaintiff and defendant
Nos.2 and 3 have relinquished their right and there is no any
legal document to that effect. It is also important to note
that though defendant relies upon the evidence of DW2 and
DW3 who are the witnesses to the document and they have
given clear admission that they came and gave evidence at
the instance of defendant No.4 and they were having
acquaintance with defendant No.4. The DW2 categorically
admits that if any difficulty, he used to approach the
defendant No.4. It is also important to note that the DW2
categorically admits in order to avoid giving share in favour
of plaintiff and defendant Nos.2 and 3, the said false
document was created and also admitted that the plaintiff,
defendant Nos.2 and 3 were not present while executing the
gift deed and except the said document of Ex.D11-partition,
no other documents.
27. Having considered the answer elicited form the
mouth of DW2 and his evidence is not credible and it goes
against the defendant and so also the evidence of DW3, who
claims that he is signatory to the document and he
categorically admits that the affidavit was prepared at the
instructions of defendant NO.4 and he is not having personal
knowledge about the contents of the affidavit filed by him
and having acquaintance with defendant No.4 and he came
to give evidence since defendant No.4 has called him.
Hence, he is also a interested witness not knowing the very
contents of the affidavit which he had filed and his evidence
also will not comes to the aid of defendant No.4. No doubt
other defendant Nos.4 and 5 are the scribe of gift deed as
well as partition deed and it is clear admission on the part of
scribe of gift deed that he did not verify the document before
preparing the gift deed.
28. It is also important to note that other witness to
Ex.D11 i.e., DW5 also categorically admits that in his
presence no money was given to plaintiff, defendant Nos.2
and 3. For having paid the amount only DW2 speaks about
the same but, his evidence cannot be accepted and he has
given clear admission in order to why the property has to be
given to plaintiff and defendant Nos.2 and 3 the document
was created.
29. Having re-analyzed the evidence available on
record, we do not find any error committed by the Trial
Court in not accepting the alleged unregistered partition
deed and the same is inadmissible in evidence and also no
proof for having paid the amount. The PW1 denied the
signature of plaintiff in the said document. No doubt though
the defendant examined DW2 to DW5 and their evidence not
inspires the confidence of the Court that the document of
partition deed came into existence. But, the document of gift
deed executed by the mother is not seriously disputed.
30. It is also important to note that PW1 only says
that he is not aware of the execution of gift deed. But, the
evidence of PW2 goes against the plaintiff with regard to the
no partition. But, categorically admitted PW2 that there was
a partition among the family members. We have given an
anxious consideration even though the PW2 admits the
same, but PW1 categorically denied the same and also the
alleged partition deed is not registered document and the
same is not admissible in the eye of law and also
relinquishing the plaintiff right, no legal document is placed
before the Court.
31. It is also important to note that though DW1
claims that there was a registered partition, no such
document is placed before the Court and the same is also
taken note of by the Trial Court. It is also important to note
that DW1 categorically admits that in order to give trouble to
the mother and also to the sisters, he has availed the loan
from the Society. These are the evidence goes against the
defendant No.4. The DW1 categorically says for having paid
the amount to deceased, but he has not produced the
document except claiming that there was a 'Watni'. DW5
also admits he did not witness the payment of amount in
favour of plaintiff and defendant Nos. 2 and 3. When all
these materials available on record, the very partition has
not been proved, but proved the document of gift deed and
the same is not seriously disputed. The PW1 says that he is
not aware of the same, but DW2 is the attesting witness to
gift deed.
32. It is also important to note that DW2 and DW4
are the witnesses to the gift deed and scribe. No doubt in
the gift deed there was a reference that based on the
partition only she had executed the gift deed. It is also
important to note that the Trial Court having considered the
evidence available on record, comes to the conclusion that
when there was no partition, question of executing gift deed
does not arise and she was not having exclusive right to
execute the gift in terms of the Ex.D12. But, the fact that
the mother was residing with the defendant No.4 is not in
dispute. The Trial Court comes to the conclusion that when a
person is not having any absolute title to the property i.e., in
respect of R.S.No.144/3 and not having any right to transfer
the property and any transfer made by her is not a valid
transfer in the eye of law. Hence, the gift deed cannot be
acceptable. But, the fact that gift deed executed was proved
by examining the DW2 and DW4.
33. It is also important to note that the gift deed in
respect of R.S.No.144/3 i.e., 4 acres of land and the mother
cannot execute gift deed and she was not the owner of the
said property exclusively, but she can only execute gift deed
in favour of her son in respect of her share is concerned, the
same has not been considered by the Trial Court. The Trial
Court has lost sight of the said fact. It is also important to
note that the mother was living along with the defendant
No.4 and though gift deed in respect of R.S.No.144/3 and
she was not having exclusive right in respect of the said
property to execute the gift deed and her intention is very
clear that for love and affection she has executed a gift deed
in favour of her son. We have also taken note of the fact
that PW1 in further cross-examination when the additional
affidavit was filed, categorically admitted that all the sisters
are residing in their respective husband's houses and mother
was residing along with defendant No.4 and also there is a
categorical admission that defendant No.4 i.e., DW1 taken
care of the mother. It is also undisputed fact that mother
passed away during the pendency of the suit and when she
has executed gift deed in favour of her son and though it is
in respect of R.S.No.144/3, but her intention is very clear
that son had taken care of her during her lift time and all the
daughters are residing in their respective husband's house.
There is also clear admission on the part of PW1 that
defendant No.4 has taken care of the mother and for that
limited purpose creating of document of gift deed in respect
of her share would have been taken note of by the Trial
Court and the Trial Court lost sight of the same.
34. Though the gift deed is not admitted in respect of
property bearing R.S.No.144/3 since she was not having
absolute right and the fact that she succeeded the property
of her husband along with four children is not in dispute. The
said Hanumant died on 16.04.2009 and mother Rudravva
i.e., defendant No.1 executed the gift deed and she died
during the pendency of the suit. It is the contention of the
plaintiff also that the said gift deed was executed and the
same was not challenged in the plaint and the said
contention cannot be accepted and the Court has to take
note of intention of the mother in executing the gift deed.
Even though the gift deed in respect of R.S.No.144/3 is not
accepted and ought to have taken note of intention of the
mother in executing the gift deed. Hence, the Court has to
take note of the fact that mother had executed the gift in
favour of the son who had taken care of her during her life
time and also till her end of her life, she was along with him.
Hence, the appeal requires to be allowed in part. The same
has to be modified.
35. No doubt the Trial Court while answering issue
No.3, taken note of claim of plaintiff's 1/5th share while filing
the suit and also taken note of amendment coming into
effect of Section 6 of Hindu Succession Act, 2005 and as per
Section 6 of Hindu Succession Act, 2005, the daughters are
treated as co-parceners and they are having equal share of
the properties. The plaintiff and defendant Nos.2 and 3 are
the daughters and defendant No.1 is the wife, defendant
No.4 is the son of deceased Hanumant and they being co-
parceners, they are entitle for equal share in the suit
properties.
36. It is rightly observed in paragraph No.22 of the
Trial Court judgment that plaintiff is entitled for 1/5th share
in the suit schedule properties, but while in the operative
portion it is amended as plaintiff and defendant Nos.2 to 4
are entitled for 1/4th share each in the suit schedule
properties, but the same is against the para 22 of the
judgment. When the Court comes to a conclusion that all of
them are entitled for 1/5th share, but modified the same as
plaintiff and defendant Nos.2 to 4 are entitled for 1/4th share
in the operative portion, but fails to take note of execution of
gift deed by the mother and though not in respect of entire
property of R.S.No.144/3, but her right has been created in
favour of the son and the said fact has not been considered
by the Trial Court and the Trial Court has to take note of the
intention of gift deed executed in favour of defendant No.4
in respect of R.S.No.144/3 and she was not having absolute
right, but in respect of her share is concerned, she left a
document of gift deed. Hence, it requires modification of the
judgment and decree. Hence, we answered the points
accordingly.
37. In view of the discussions made above, we pass
the following:
ORDER
The appeal is allowed in part.
The judgment and decree of the Trial Court is modified
granting 1/5th share in favour of the plaintiff and granting
1/5th share in favour of defendant Nos.2 and 3 each and
2/5th share in favour of defendant No.4 including his mother
share.
Accordingly, the judgment and decree of the Trial Court
is modified.
The Registry is directed to collect the Court fee from
defendant Nos.2, 3 and 4 before drawing the decree.
The Registry is directed to return the Trial Court record
along with the copy of this judgment forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
RHS
