Karnataka High Court
Shankreppa S/O. Fakirappa Pandari vs Smt. Muttawwa W/O. Fakirappa Pendari on 26 July, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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RFA No. 100138 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 26TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
REGULAR FIRST APPEAL NO. 100138 OF 2018 (PAR/POS)
BETWEEN:
SHANKREPPA S/O. FAKIRAPPA PANDARI
AGE:44 YERS, OCC:AGRICULTURE,
R/O: PETLUR-587112,
TAL:MUDHOL, DIST:BAGALKOT.
...APPELLANT
(BY SRI. SHEKHARGOUDA M. NAGANURI, ADVOCATE)
AND:
1. SMT. MUTTAWWA W/O. FAKIRAPPA PANDARI,
Digitally AGE: 77 YEARS, OCC: AGRICULTURE,
signed by
GIRIJA A
BYAHATTI
R/O: PETLUR-587112,
Location:
HIGH COURT
TAL: MUDHOL, DIST: BAGALKOT.
OF
KARNATAKA (SINCE DECEASED, DELETED AS PER ORDER
DATED 07.08.2020)
2. SMT. RUKMAWWA W/O. MUTTAPPA B. PATIL,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: BIDARI-587313,
TAL: MUDHOL, DIST: BAGALKOT.
3. SMT. SHEKAWWA W/O. SIDDAPPA KARIGAR,
AGE: 47 YEARS OCC: AGRICULTURE,
R/O: LINGANUR-587301
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RFA No. 100138 of 2018
TAL: JAMKHANDI, DIST: BAGALKOT.
4. SMT. GIREWWA W/O. PARASAPPA KARIGAR,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: LINGANUR-587301,
TAL: JAMKHANDI, DIST: BAGALKOT.
5. SMT. SAVITRI W/O. BHIMAPPA HALINGALI,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: SIDDAPUR-587301,
TAL: JAMKHANDI, DIST: BAGALKOT.
6. SMT. SUMAWWA W/O. RAMANNA KALLOLLI,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O: HULYAL-587301,
TAL: JAMKHANDI, DIST: BAGALKOT.
7. SMT. SUNANDA W/O. GULAPPA KARIGAR,
AGE: 36 YEARS OCC: AGRICULTURE,
R/O: LINGANUR-587301,
TAL: JAMKHANDI, DIST: BAGALKOT.
...RESPONDENTS
(BY SMT. DEEPA DODDATTI AND
SRI. PAVAN B. DOTTATTI, ADVOCATES FOR R3, R4, R7;
SRI. MALLIKARJUN C. HUKKERI, ADVOCATE FOR R2, R5, R6;
R-1 DECEASED, R2 TO R7 TREATED AS LRS OF DECEASED R1)
---
THIS RFA IS FILED U/SEC. 96 R/W. ORDER XLI RULE 1 CPC,
1908. AGAINST THE JUDGMENT AND DECREE DATED:24.02.2018
PASSED IN O.S.NO.103/2015 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
MUDHOL, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
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RFA No. 100138 of 2018
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 08.07.2024 AND COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT', THIS DAY, T.G.SHIVASHANKARE GOWDA J.,
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
and
HON'BLE MR.JUSTICE T. G. SHIVASHANKARE GOWDA
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA)
In this appeal, the defendant has challenged the
judgment and decree passed in O.S.No.103/2015 dated
24.12.2018 passed by Prl. Senior Civil Judge, JMFC,
Mudhol (for short, 'Trial Court').
2. The appellant was the defendant and
respondents were the plaintiff Nos.1 to 7 before the Trial
Court. The rankings of the parties will be referred to as
per their status before the Trial Court.
guntas and RS No.125/1 measuring 4 acres 21 guntas
situated at Petlur village of Mudhol Taluk is the subject
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matter of the suit described as plaint 'B' schedule
properties.
4. Brief facts of the case are, one Muttappa is the
prepositus who had a son by name Fakkirappa.
Muttappa, his wife Rukmawwa are no more. Plaintiff No.1
by name Muttawwa is the wife of Fakkirappa. Plaintiff
Nos.2 to 7 and defendant are their children. Fakkirappa
died on 28.06.2015. Fakkirappa and his children
constitute a Hindu Undivided Joint Family. The plain
schedule 'B' properties are joint family properties of the
plaintiffs and defendant. Fakkirappa acquired the item
No.1 of the plaint 'B' schedule through gift deed executed
by Girewwa. Land in RS No.62/2 of Timmapur village
belonging to the family of the plaintiffs and defendant. It
was sold to one Soraganv family under a registered sale
deed. Out of sale proceeds, item No.2 of the suit 'B'
schedule property was purchased from Smt. Balavva Belli.
During his lifetime Fakkirappa, plaintiffs and defendant
were enjoying the suit 'B' schedule properties as joint
family properties.
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4(a) At no point of time, Fakkirappa having any
intention to gift the suit schedule properties in favour of
the defendant. But the defendant has created a gift deed
dated 14.05.2015 by playing fraud upon Fakkirappa. The
plaintiffs came to know that behind their back, the
defendant has taken the gift deed from Fakkirappa. They
adviced Fakkirappa that the gift deed has been cooked up
by the defendant. He promised to cancel the gift deed but
on 27.06.2015 in the night hours, the defendant
committed the murder of Fakkirappa. On 28.06.2015, the
plaintiffs came to know about the same at 3.30 p.m. They
were proceeding to file police complaint, but elderly people
in the locality stopped them as the defendant agreed
before them to cancel the gift and requested the plaintiff
No.1 not to file any complaint. Believing the words of the
defendant, plaintiffs did not file any complaint but she
signed on a blank paper before the police who closed the
case by registering UDR. Thereafter plaintiff requested the
defendant to cancel the gift deed but he did not accept
their request. Hence, the plaintiffs have filed the present
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suit seeking cancellation of gift deed and also partition and
separate possession of their share of properties.
5. The defendant opposed the suit by filing written
statement, inter alia admitting the relationship. He denied
that plaint suit schedule properties are the joint family
properties and plaintiffs and defendant are in possession
and enjoyment. It is the specific case of the defendant
that the entire suit schedule lands are self acquired
properties of Fakkirappa and he was in enjoyment of the
property as exclusive owner. The plaintiffs were not
having cordial relationship with Fakkirappa. Due to love
and affection, Fakkirappa executed the gift deed dated
14.05.2015 gifting the suit schedule properties in favour
of the defendant. Fakkirappa executed the gift when he
was in good health, on his own will and wish without any
coercion or force. By virtue of the gift deed, khata has
been changed. The plaintiffs have no right title or interest
over the suit schedule properties and sought for dismissal
of the suit.
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6. On the basis of the above pleadings, the Trial
Court framed following 5 issues.
ISSUES
1. Whether the plaintiffs prove, that they are
members of Hindu undivided joint family and
properties are joint family properties of plaintiffs
and defendant?
2. Whether the plaintiff prove the gift deed dated
14.05.2015 in respect of suit item No-1 and 2 said
to have been executed by Fakirappa in favour of
defendant is created by the defendant by playing
fraud, putting theat on deceased Fakirappa, by
undue influence and coercion?
3. Whether the defendant prove the Fakirappa having
exclusive ownership in respect of the suit item No-1
and 2 property executed gift deed in favour of
defendant on 14.05.2015?
4. Whether the plaintiffs are entitled for the relief
sought for?
5. What order or decree
7. In order to prove their case, on behalf of
plaintiffs, first plaintiff was examined as PW-1. 7
documents came to be marked as Exs.P-1 to P-7. The
defendant examined himself as DW-1 and 2 witnesses as
DW-2 and DW-3 and marked 22 documents as per Exs.D-
1 to D-22.
7(a) The Trial Court after hearing both the parties,
answered issue Nos.1 and 4 partly in the affirmative, issue
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No.2 in the affirmative, issue No.3 in the negative and
while answering issue No.5 decreed the suit granting 1/7th
share each to the plaintiffs in item No.1, 1/49th share to
the first plaintiff, 8/49th share to the plaintiff Nos.2 to 6 in
item No.2 of the suit schedule properties. Aggrieved by
the same, the defendant has filed this appeal on various
grounds.
8. Heard the arguments of Sri Shekhargouda M.
Naganuri, learned counsel for defendant, Smt. Deepa
Doddatti, learned counsel for plaintiff Nos.3, 4 and 7 and
Sri M.C. Hukkeri, learned counsel for plaintiff Nos.2, 5 and
6.
9. It is contended by the learned counsel for
defendant that the suit item No.1 was gifted to
Fakkirappa by Girewwa in the year 1967. Therefore, it is
the absolute property of Fakkirappa. Item No.2 of the
plaint schedule is earned by the income derived by item
No.1 thereby item No.2 became self acquired property of
Fakkirappa. He was in possession and enjoyment of the
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property till his death on 28.06.2015. The first plaintiff
being the wife and plaintiff Nos.2 to 7 being the daughters
have abandoned Fakkirappa. Therefore, he was residing
with his only son i.e., defendant. Due to love and
affection, by voluntary act, Fakkirappa executed a
registered gift deed, gifting the entire plaint schedule
properties to his son. The defendant got changed the
mutation in his name. The plaintiff Nos.2 to 7 are
married daughters and the plaintiff No.1 is estranged wife
did not have any legal right to claim partition in self
acquired properties of Fakkirappa. The defendant being
the absolute owner in possession and enjoyment of the
property. In order to harass the defendant, frivolous suit
is filed by the plaintiffs.
9(a) It is further contended that the plaintiffs are
challenging the gift on the ground that it is obtained by
fraud. A person who wants to urge fraud has to plead
nature of fraud and also lead evidence in proof of it. The
plaintiffs failed to produce any evidence in proof of fraud.
The Trial Court has erroneously observed that non-
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examination of the testator gift cannot be relied. The
examination of testator is not required in a gift under
Section 68 of the Evidence Act, 1872. The gift deed is a
registered document. The plaintiffs were not taking care of
Fakkirappa at his later days. It is the defendant who took
care of his father and only after the death of Fakkirappa,
the suit is filed creating a ground for challenging the gift.
10. Per contra, learned counsel for plaintiffs have
contended that the suit schedule properties are the joint
family properties. Sy.No.62/2 of Timmapur village
belonging to the family of the plaintiffs and defendant, by
selling the said property, item No.2 of the suit schedule
property was acquired and item No.1 being the joint
family property, plaintiffs and defendant are entitled to
claim equal share. No reasons are assigned in the gift
deed why Fakkirappa not allotted any property to his wife
and daughters. The defendant by threatening Fakkirappa
and with due coercion, got executed the gift deed.
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10(a) The plaintiffs came to know about the same
and they immediately they questioned Fakkirappa and the
defendant. It was promised to them that the gift deed will
be cancelled and properties will be retained for the family.
Fakkirappa was about to cancel the gift, but on
27.06.2015, the defendant committed his murder.
Plaintiff No.1 was about to go to Police Station for filing
complaint, but a panchayat was conducted, where the
defendant agreed for cancellation of gift deed and
allotment of shares to the plaintiffs equally. Because of
this promise, murder case of Fakkirappa was closed as
UDR. On closure of case as UDR, the defendant back
tracked his promise and forced the plaintiffs to go before
the Court. There was no reason for Fakkirappa to execute
a gift deed in favour of defendant leaving his wife and
daughters. Hence, the gift is a fraudulent one.
10(b) Cross-examination of the defendant
demonstrates that the gift is attached with consideration.
The defendant promised Fakkirappa that he will keep
money in his name and in the name of 1st plaintiff in Fixed
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Deposit in bank and to pay money to his sisters. He did
not deposit nor paid to the plaintiffs thereby gift is not
acted upon and it is not a valid gift.
10(c) Trial Court has rightly accepted that the
plaint schedule properties are joint family properties,
Fakkirappa was aged, he was physically, mentally
harassed and gift deed is concocted by the defendant and
granted share to plaintiffs. It is further contended that
during the pendency of the appeal, plaintiff No.1 has died
and now plaintiff Nos.2 to 7 and defendant are the
survivors of Fakkirappa. Hence, plaintiffs and defendant
are equally entitled to 1/7th share each. Accordingly,
sought for modification of the share allotted by the Trial
Court.
11. We gave our anxious consideration to the
arguments addressed by the learned counsel for the
parties and perused the material on record.
12. The points that arise for our consideration are:
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(i) Whether the plaint schedule properties are joint
family properties of plaintiffs and defendant?
(ii) Whether the alleged gift deed executed by
Fakkirappa in favour of defendant is attached
with consideration?
(iii) Whether the impugned judgment and decree
passed by the Trial Court is erroneous and
illegal?
13. Re: Point No.(i): The relationship between the
plaintiffs and defendant is not in dispute. Suit schedule
consists of 2 items. Item No.1 is RS No.125/2 measuring
6 acres 10 guntas which is gifted to Fakkirappa on
18.05.1967 by one Smt. Girewwa. Item No.2 is RS
No.125/1 measuring 4 acres 21 guntas is purchased by
Fakkirappa on 28.04.1980 from one Smt. Balavva Belli.
Plaintiffs' claim that both the suit schedule properties are
the ancestral joint family properties and defendant claims
that they are the self acquired properties of Fakkirappa.
14. The parties have entered into witness box and
the evidence on record point out that item No.1 of plaint
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schedule property is a gifted property by Smt. Girewwa in
favour of Fakkirappa on 18.05.1967 and the same has
been admitted by both the plaintiffs and defendant.
15. First plaintiff in the witness box asserts that
though it was gifted in favour of her husband by Smt.
Girewwa, it is the joint family property. When the gift was
made in the year 1967, the plaintiff Nos.3 to 7 and the
defendant were not at all born. The second defendant
was a minor child. Under such circumstances, the gift in
favour of Fakkirappa assumes the nature as self
acquisition. Neither in the pleadings nor in the evidence,
there is any averment or assertion that Fakkirappa left
item No.1 of the plaint schedule to the common
hotchpotch of the family treating it as a joint family
property but at the same time, it is not in dispute that
both the item Nos.1 and 2 are enjoyed by the family
together and for the reason of some differences, his wife
and daughters were residing separately and Fakkirappa
and the defendant were residing together till his death.
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The Trial Court has recorded that item No.1 has been
acquired by Fakkirappa since under the gift deed from
Smt. Girewwa, it is his absolute property.
16. Learned counsel for plaintiffs brought to the
notice of the Court the admission made by the defendant
in the cross-examination that item No.1 was gifted to the
family of Fakkirappa by Girewwa. If that is so, the
plaintiff Nos.3 to 7 and defendant were not at all born at
the time of gift. Then we cannot attach more weight to
such admission of the defendant who was not born at the
time of gift by Girewwa. Hence, the Trial Court has
rightly observed that item No.1 of the plaint schedule is
the absolute property of Fakkirappa.
17. Coming to the aspect of nature of property i.e.,
item No.2 of the plaint schedule, it is undisputed that
Fakkirappa purchased this land by a registered sale deed
dated 28.04.1980 for a consideration from one smt.
Balavva Belli. The defendant claims that since Fakkirappa
purchased this property out of the income derived from
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item No.1, it also becomes his self acquired property of
his father. But the evidence brought on record clearly
explains that Fakkirappa had purchased the land in
Sy.No.62/2 from one Savantrewwa Junnur and
Parvatewwa Junnur for a consideration of Rs.2,000/-.
This piece of land was sold to one Hanamappa Soraganv
on 28.04.1980 for a consideration of Rs.8,000/-.
Interesting to note that the sale of RS No.62/2 and
purchase of RS No.125/1 both are on 28.04.1980. So the
proceeds to purchase item No.2 of the plaint schedule
was derived by sale of RS No.62/2.
17(a) But at the same time, the defendant in the
cross-examination categorically admitted that there was
an ancestral land of 8 acres belonging to the family in RS
No.42/2. This land was acquired by the Government and
compensation was awarded to Fakkirappa. The defendant
admits that out of the compensation so received on
account of land acquisition, item No.2 i.e., RS No.125/1
measuring 4 acres 21 guntas was acquired by Fakkirappa.
The admission of the defendant sufficiently explain that
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Fakkirappa in order to acquire RS No.125/1 i.e., item No.1
utilized compensation received from the Government and
also sale of land in RS No.62/2. This clearly goes to
demonstrate that the proceeds to acquire item No.2 of the
plaint schedule also contributed by the ancestral property
of the plaintiffs and defendant. So it is clear that item
No.2 of the plaint schedule is acquired by Fakkirappa by
contributing compensation of ancestral land acquired by
the Government. Thereby it assumes the nature of joint
family of the plaintiffs and defendant.
18. Now from the above discussion, it is very clear
that item No.1 of plaint schedule is self acquired by
Fakkirappa. Item No.2 is the joint family property of both
the plaintiffs and defendant along with Fakkirappa. The
defendant in witness box admitted that there was no
partition of the suit schedule properties between
Fakkirappa and his wife and children, no share was given
to the plaintiff Nos.2 to 7 and till the death of Fakkirappa
suit schedule properties are enjoyed by Fakkirappa. In
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the absence of evidence that the item No.1 was blended
with item No.2 as joint family property, it is very difficult
to accept the contention of the plaintiffs that item No.1 of
the plaint schedule is also the joint family property.
Hence, we are persuaded in recoding our finding that the
item No.1 of the plaint schedule is the absolute property
of Fakkirappa and item No.2 is the joint family property of
plaintiffs and defendant along with Fakkirappa.
Accordingly, the point No.1 is answered.
19. Re: Point No.(ii): The plaintiffs claim that fraud
has been played by the defendant against Fakkirappa in
obtaining the gift deed. It is also contended that the
defendant forced Fakkirappa to execute the gift deed in
his favour. The gift deed is tendered before the Court by
the defendant and marked as per Ex.D-3.
20. We have carefully perused the evidence relied
by both the plaintiffs and defendant. The evidence
brought out that Fakkirappa was cordial with his son only.
He was not cordial with his wife and daughters. The
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defendant offers explanation that his mother was not
listening to the words of his father. For this reason, the
mother was residing with the daughters and father was
residing with the son. But at the same time, the
defendant admits that Fakkirappa had affection towards
his wife and daughters.
20(a) The defendant also explains the custom in
their village that no share will be given to the female
members of the family, they will be given only gold and
share in the immovable property was given to the
son/sons only. In this regard, the elders in the village
have adviced Fakkirappa to give the entire land properties
to the defendant, asked him to keep some money in his
and wife's name and give gold to the daughters. This
explains that involvement of the elders of the village in
asking Fakkirappa to part with the landed properties in
favour of the son by giving gold to the daughters keeping
some money in his name. In this background, Ex.D-3
came into existence.
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20(b) It is the argument of the learned counsel for
defendant that it is the plaintiffs, who urged forgery and
they are required to plead and prove the alleged fraud
committed by the defendant against Fakkirappa as
required under Order 6 Rule 4 of CPC. In this regard, it is
very relevant to refer the evidence of the defendant.
During the course of cross-examination, the defendant
admits that as per the advice by the village elders,
Fakkirappa asked him to deposit Rs.2,00,000/- in his
name, Rs.2,00,000/- in the name of first plaintiff and to
pay 1 tola gold each to the plaintiff Nos.2 to 7. The
defendant borrowed loan of Rs.4,00,000/-, 2 months prior
to the execution of gift deed, gave Rs.2,00,000/- to the
hands of his father. Since the mother did not accept, he
returned the loan of Rs.2,00,000/-. But in the course of
cross-examination of 1st plaintiff, no such suggestion was
put.
20(c) The defendant also admits that before
executing the gift deed, his father put the full
responsibility of this sisters on his shoulders. His father
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though told him to give 1 tola gold, he has not paid it to
his sisters as they did not come forward to collect the
same. This aspect is also not forthcoming in the cross-
examination of PW-1. In this regard, the defendant did
not issue any notice asking his sisters to collect 1 tola gold
nor approached them offering the gold. This admission
clearly goes to show that before executing the gift deed,
there were prior talks and several conditions were put. As
the defendant admitted to abide by the said terms,
Fakkirappa executed Ex.D-3 gift deed.
21. It is brought out in the evidence that at the
time of execution of gift, Fakkirappa was aged, not able to
walk, within 42 days of the execution of the gift deed,
Fakkirappa died. According to defendant, he died by
committing suicide. If really Fakkirappa was a happy
married person with his wife, son and daughters, where
was the occasion for him to commit suicide within 42 days
of execution of the gift deed. The defendant admits that
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within 2 days, from the execution of the gift deed, he has
applied for change of revenue khata.
21(a) That the death of Fakkirappa was reported to
the police on the basis of the complaint of mother, the
complaint came to be closed as UDR. Though the
defendant claims that father committed suicide because of
harassment by his grandchildren i.e., the children of his
sisters and he was about to file the police complaint which
was prevented by the village elders. This aspect is not
corroborated by any person knowing these facts. Under
these circumstances, gift is surrounded with circumstances
which caste cloud against the defendant leading to a
complaint filed by the mother. Under such circumstances,
what weight can be attached to such a gift has to be
considered now.
22. The Trial Court has referred Section 122 of the
Transfer of Property Act, 1882 (for short, 'T.P. Act')
regarding gift of movable or immovable property made
voluntarily and without consideration, by a donor in
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favour of donee. The Trial Court has noted down the
following essential requisites for a valid deed, which are
extracted as below:
i) There must be a transfer of ownership of a property.
ii) The property should be of existing property.
iii) The transfer should be voluntary.
iv) It shall be without consideration.
v) It can be of movable of immovable property.
vi) The transfer should be accepted by the Donee from the
Donor.
vii) The acceptance of the transfer must be during the life-
time of the donor and he must be still capable of giving.
In the event of the donor dying before acceptance, the
gift is void.
23. The Trial Court also referred to Section 123 of
T.P. Act with reference to the attestation of gift deed by
alteast 2 witnesses. Since the execution of gift by
Fakkirappa in favour of the defendant is not valid and
allegation that the said gift is under fraud, there is no
effect of Section 123 of T.P. Act.
24. We have carefully perused the statement of
defendant during the cross examination. When the gift
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deed was executed, Fakkirappa was aged, he was under
his control, wife was not residing with Fakkirappa as the
plaintiffs were residing separately elsewhere. It is also
admitted by the defendant that the transfer of immovable
properties in favour of the defendant was decided by the
elders as there is no custom in the village to give share to
female members in the family. They were only given with
gold as a token of affection. In the present case, the
defendant admitted that the demand of the father that
gift will be made only if a sum of Rs.2,00,000/- is
deposited in his and his wife-first plaintiff's name and 1
tola gold is to be given each of the sisters. No evidence is
placed by the defendant to show that he has deposited
any amount in the name of his parents and gave gold to
the sisters. From these statements, it is very clear that
gift having a condition of payment of consideration. In
view of the same, as referred in Section 122 of T.P. Act,
the essential requisite to complete the gift shall be
without consideration. But here in this case, the gift in
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favour of the defendant in Ex.D-3 is supported with
consideration.
25. It has been argued by the learned counsel for
defendant that on plain reading of the recitals of Ex.D-3
there is no recital as to the payment of any consideration
for the gift. Under such circumstances, the oral evidence
will not exclude the recitals in Ex.D3. In this regard,
Section 91 of the Evidence Act is relevant to note that
when the terms of contract, or of a grant, or of any other
disposition of property, have been reduced to the form of
a document, and in all cases in which any matter is
required by law to be reduced to the form of a document,
no evidence shall be given in proof of the terms of such
contract, grant or other disposition of property, or of such
matter, except the document itself.
25(a) It is relevant to refer exception to Section 92
of the Evidence Act where the oral evidence is admissible
to prove that the document is a sham transaction.
Exception to this rule, oral evidence is admissible to
explain that document is a sham. Here in this case, it is
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the specific case of the plaintiffs that fraud is played and
Ex.D-3 is a sham document. In such circumstances, in
view of exception to Section 92 of the Evidence Act, the
oral evidence of the defendant that the gift deed attached
with consideration is admissible. On a plain reading of
Ex.D-3, we can note that there is no recital as to why the
other family members were kept out of gift.
26. The evidence speaks that at relevant point of
time, there was disharmony in the family, the wife and
daughters were residing separately. Fakkirappa was under
the control of defendant. The evidence also suggests that
for execution of gift deed, the defendant has actively
participated, above all within 2 days of execution of gift
deed, the defendant tries to get change of khata and
within 42 days of the execution of gift deed, father dies.
Attributing allegations against the defendant that he was
the cause for the death of his father. The defendant
admits that father committed suicide wherein plaintiff
No.1 attributed that death was caused by the defendant.
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In support of this, it is admitted that postmortem was
conducted on the dead body of Fakkirappa and the police
have registered the UDR case on the complaint of the
mother. The evidence also suggests involvement of
elders of village, made an allegation that the case was
converted into UDR. Under such circumstances, the
totality of the evidence and the document at Ex.D-3
clearly indicates that gift is not executed by Fakkirappa
with free will on his own volition, gift is attached with
consideration and this consideration has not been paid by
the defendant. Hence, the gift deed is not executed in
letter and spirit of Fakkirappa in disposing of the plaint
schedule properties in favour of son excluding his wife
and daughters. The evidence on record suffice to hold
that the gift is not a valid gift.
27. Item No.2 is the property acquired by
Fakkirappa out of income derived from the ancestral
property. Fakkirappa cannot gift entire properties even if
the gift is accepted, it can only bind the undivided share
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of Fakkirappa. Since the plaintiffs have proved that gift
is not a valid gift, irrespective of plaint schedule item
Nos.1 and 2 ancestral and self acquired properties of
Fakkirappa, both plaintiffs and defendant are entitled for
equal share. In the result we answer point No.(ii)
accordingly.
28. Re: Point No.(iii): We have carefully perused
the impugned judgment. The Trial Court after examining
the evidence, documents held that the properties were
the ancestral properties and provisions of Hindu
Succession Act have been applied and directed for
partition of the properties. The Trial Court also held that
item No.1 is self acquired property, item No.2 is ancestral
property. As we discussed above, the finding recorded by
the Trial Court is proper and based on the facts pleaded
and evidence placed before it. We noticed that the Trial
Court has applied notional partition in respect of item
No.2 being the joint family property, allotted equal share
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to the plaintiffs and defendant in respect of item No.1 as
self acquired property of Fakkirappa.
29. There is changed circumstance due to efflux of
time in this appeal. Plaintiff No.1 during the pendency of
the appeal reported to be dead and there remain the
plaintiffs No.2 to 7 and defendant. Their father died in
the year 2015. In Vineeta Sharma and Rakesh
Sharma and others1, the Hon'ble Apex Court held that
female members become the members of the joint family
at par with the male members by virtue of amendment of
Section 6 of Hindu Succession Act. Therefore, irrespective
of the plaint schedule properties, self acquired or joint
family properties, plaintiffs No.2 to 7 and defendant are
equally entitled to share in both plaint schedule
properties. Share can be modified by the Trial Court at
the time of division of the properties in the Final Decree
Proceedings.
(2020) 9 SCC 1
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30. In view of above discussions and re-
appreciation of case pleaded by both plaintiffs and
defendant, we are of the considered opinion that gift deed
is invalid, plaintiffs and defendant are entitled to share
the suit 'B' schedule property equally. We do not find any
illegality or error committed by the Trial Court in
appreciating the evidence. Accordingly, we answer point
No.(iii). Therefore, the appeal is devoid of merits. In the
result, the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
NAA
