[Cites 6, Cited by 0]
Karnataka High Court
Sri S E Sreenivasaiah vs Smt B Sarojamma on 6 February, 2026
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RFA NO.185 of 2018
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HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2026
PRESENT
THE HON'BLE MR. JUSTICE D K SINGH
AND
THE HON'BLE MS. JUSTICE TARA VITASTA GANJU
REGULAR FIRST APPEAL NO.185 OF 2018 (DEC)
C/W
REGULAR FIRST APPEAL NO.333 OF 2018
IN RFA No.185/2018
BETWEEN:
SRI. S.E.SREENIVASAIAH,
S/O LATE C.GANGAIAH,
AGED ABOUT 48 YEARS,
R/O NO.206/15, 4TH MAIN,
HEBBAL, GANGA LAYOUT,
BENGALURU-560 032.
...APPELLANT
(BY SRI. S.SREEVATSA., SR.COUNSEL FOR
SMT. RASHMI JADHAV., ADVOCATE)
AND:
Digitally signed by S
NOORUNNISABEGUM 1. SMT. B.SAROJAMMA
Location: HIGH
COURT OF KARNTAKA W/O LATE SRI C.GANGAIAH,
AGED ABOUT 63 YEARS,
(DEAD)BY HER LR,
RESPONDENT NO.2
2. SRI. G.S.VENKTESH KUMAR
S/O LATE SRI C. GANGAIAH,
AGED ABOUT 58 YEARS,
R/O NO.275, 6TH CROSS,
NILAGIRI PAPANNA BLOCK,
-1-
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SRIRAMPURAM,
BANGALORE-560 021.
3. SRI. NATARAJ
S/O SRI THAMMANNA,
AGED ABOUT 45 YEARS,
R/O NO.206/15, 4TH MAIN,
HEBBAL, GANGA LAYOUT,
BENGALURU-560 032.
...RESPONDENTS
(BY SRI. ANGAD KAMATH & SLOKA B FOR R1(a)
R2-SERVED & UNREPRESENTED)
THIS RFA FILED UNDER SECTION 96 OF CPC., 1908,
AGAINST THE JUDGMENT AND DECREE DATED 28.11.2017
PASSED IN O.S.NO.6483/2008 ON THE FILE OF THE XL
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
DECREEING THE SUIT FOR DECLARATION AND ETC.
IN RFA NO.333/2018
BETWEEN:
SRI. S.E.SREENIVASAIAH
S/O LATE C.GANGAIAH,
AGED ABOUT 48 YEARS,
R/O NO.206/15, 4TH MAIN,
HEBBAL, GANGA LAYOUT,
BENGALURU-560 032.
...APPELLANT
(BY SRI. S.SREEVATSA., SR.COUNSEL FOR
SMT. RASHMI JADHAV., ADVOCATE)
AND:
1. SMT. B.SAROJAMMA
R/O NO.275, 5TH CROSS,
H.P. BLOCK, SRIRAMPURAM,
BENGLAURU-560 021.
SINCE DEAD BY HER LR
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SRI. G.S.VENKATESH KUMAR
S/O LATE C.GANGAIAH,
AGED ABOUT 48 YEARS,
R/O NO.275, 6TH CROSS,
NILAGIRI PAPPANNA BLOCK,
SRIRAMPURAM,
BENGALURU-560 021.
2. THE COMMISSIONER,
BENGALURU DEVELOPMENT AUTHORITY,
T. CHOWDAIAH ROAD,
KUMARA PARK WEST,
BENGALURU-560 020.
...RESPONDENTS
(BY SRI. ANGAD KAMATH & SLOKA.B. FOR R1(a)
R2-SERVED AND UNREPRESENTED)
THIS RFA FILED UNDER SECTION 96 OF CPC, 1908,
AGAINST THE JUDGMENT AND DECREE DATED 28.11.2017
PASSED IN OS NO.7548/2005 ON THE FILE OF THE XL ADDL.
CITY CIVIL AND SESSIONS JUDGE, BANGALORE DISMISSING
THE SUIT FOR PERMANENT INJUNCTION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 06.11.2025, COMING ON FOR
PRONOUNCEMENT THIS DAY, HON'BLE MS. JUSTICE TARA
VITASTA GANJU PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE D K SINGH
&
HON'BLE MS. JUSTICE TARA VITASTA GANJU
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CAV JUDGMENT
.
(PER: HON'BLE MS. JUSTICE TARA VITASTA GANJU)
1. These regular first appeals are filed by the appellant
(defendant No.1 in O.S.No.6483/2008 and plaintiff in
O.S.No.7548/2005) seeking to challenge the common
Judgment and Decree dated 28.11.2017 passed by the XL
Addl. City Civil & Sessions Judge, Bengaluru (hereinafter
referred to as the "Impugned Judgment"). By the
Impugned Judgment, the learned Trial Court has decreed
O.S.No.6483/2008 and dismissed the appellant's suit
bearing O.S.No.7548/2005. The learned Trial Court has
further declared the Gift Deed dated 25.06.2004 as a void
document and directed the appellant/plaintiff to vacate and
hand over vacant possession of the suit schedule property
within a period of three months.
2. This Court by its order dated 08.03.2018 directed an
interim stay of the Impugned Judgment and Decree.An
application under Order 41 Rule 27 of the Civil Procedure
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Code, 1908, was filed by the appellant/plaintiff. By an
order dated 20.06.2023, it was directed that application
for additional evidence filed shall be taken at the time of
final hearing. No objections are filed to the said application
by the respondents/defendants.
3. Briefly the facts are that a suit was filed
by the appellant/plaintiff in O.S.No.7548/2005 seeking
permanent injunction to restrain respondent/defendant
No.1, from alienating the suit property which is the
property bearing BDA No.206, Municipal No.206-15,
measuring East to West 60 feet and North to South 40
feet, situated at Hebbal, Ganganagar Layout, Bengaluru
(hereinafter referred to as the 'suit property'), and
restraining respondent/defendant No.1 and other persons
from interfering with his peaceful possession of the suit
property.
3.1. While respondent/defendant No.1 filed a suit,
O.S.No.6483/2008 seeking a declaration that the
respondent/defendant No.1 and his mother
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Smt. Sarojamma (plaintiff No.1 in O.S.No.6483/2008) are
the absolute owners of the suit property and that the
registered Gift Deed dated 25.06.2004 is void. The relief of
possession was also sought by respondent/defendant No.1 in
his suit.
3.2. Both suits were clubbed and common evidence was
led in O.S.No.7548/2005.
4. It was the case of the appellant/plaintiff that the suit
property belonged to one Sri.C.Gangaiah, who is stated to
be the father of the appellant/plaintiff. The
respondent/defendant No.2 has also contended that he is
the son of Sri. C.Gangaiah. The suit property was allotted
to the father of the appellant/plaintiff vide lease-cum-
saleagreement on 07.05.1975 and possession certificate
on 06.08.1975. During his lifetime, Sri.C.Gangaiah
executed a Gift Deed on 25.06.2004 (hereinafter referred
to as the "Gift Deed") in favour of the appellant/plaintiff.
After the death ofSri.C.Gangaiah, appellant/plaintiff got
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the khatha changed in his name and he is in possession of
the property thereafter.
4.1. It is further stated by the appellant/plaintiff that the
respondent/defendant(Smt. B.Sarojamma) claims to be
the wife of Sri.C.Gangaiah and that the suit property
belongs to her. However, the appellant/plaintiff has denied
the relationship and ownership of respondent/defendant
No.1(Smt. B.Sarojamma). The appellant/plaintiff sent a
notice on 01.10.2005 to the Bangalore Development
Authority (hereinafter referred to as the "BDA") requesting
them not to transfer the property in the name of
respondent/defendant No.1 since there was a threat to the
rights of the appellant/plaintiff. Thus, the
appellant/plaintiff filed a suit for permanent injunction
against the respondent/defendant No.1.
4.2. The respondent/defendant No.1 entered appearance
in the suit and filed a Written Statement averring that
the appellant/plaintiff is not the son of Sri.C.Gangaiah.
However, it was not denied that Sri.C.Gangaiah was
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allotted the suit property by the BDA. The factum of Gift
Deed was also denied by the respondent/defendant No.1.
4.3. As stated above, a separate suit was also filed by the
respondents/defendants challenging the Gift Deed and
contending that the Gift Deed is a fraudulent and forged
document and not executed by Sri.C.Gangaiah.The
respondent/defendantNo.1 averred that Sri.C.Gangaiah
died on 11.09.2003 at Sanabagatta. The alleged Gift Deed
stated to be executed is subsequent to death of
Sri.C.Gangaiah. It was pleaded that respondent/defendant
is the wife and the respondent/defendant No.1 is the son
of Sri.C.Gangaiah.
4.4. In addition, it was pleaded by respondent/defendant
No.1 that appellant/plaintiff is the son of one Sri.Eranna,
the brother of Sri.C.Gangaiah. As the appellant/plaintiff
was a relative to Sri.C.Gangaiah, he used to visit his house
and thus, the appellant/plaintiff was aware of details
of assets of Sri.C.Gangaiah.Sri.C.Gangaiah also kept
original documents consisting of Sale Deed, Tax Paid
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Receipts, Possession Certificate etc., of the suit property in
the house of his brother Sri.Eranna and the
appellant/plaintiff used these documents to fabricate the
Gift Deed.
4.5. It was further contended that the appellant/plaintiff
fabricated the Death Certificate of Sri.C.Gangaiah showing
the date of death as 04.08.2004 to forge the Gift Deed.
A criminal case was also instituted against the
appellant/plaintiff by the Tahsildar in this regard. It was
further contended that the appellant/plaintiff had evicted a
tenant and taken unlawful possession of the suit property.
4.6. The respondent/defendant (Smt.B.Sarojamma)
further asserted that she being the wife of Sri.C.Gangaiah,
along with her children, is entitled to the execution of the
Sale Deed by the Bangalore Development Authority and
that the appellant/plaintiff has no title or lawful possession
over the suit property.
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4.7. The Respondent No.2/defendant No.2 (BDA) filed its
Written Statement wherein it has averred that the Gift
Deed claiming to be executed by Sri.C.Gangaiah is a
forged document. It further stated that at the time of
applying for transfer of the schedule property, the
appellant/plaintiff produced documents to prove that he is
the son ofSri.C.Gangaiah.
5. The learned Trial Court after examining the pleadings
between the parties framed two separate sets of Issues in
the suits, which are below:
1. (a) Whether the plaintiff proves that he is
the son of late Sri.C.Gangaiah?
1. (b) Whether the 1st defendant proves that
he is the son of late Sri.Eranna, brother of late
Sri.C.Gangaiah?
2. Whether the 1st defendant proves that she is
the wife of late Sri.C.Gangaiah?
3. Whether the plaintiff proves that the 1st
defendant is making hectic efforts to obtain
transfer deed in respect of the suit property in
her favour?
4. Whether the plaintiff is in possession of the
suit property?
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5. Whether the plaintiff proves interference
caused by the 1st defendant to his possession
and enjoyment?
6. Whether the suit of the plaintiff for the relief
of permanent injunction is maintainable without
seeking the relief of declaration?
7. What decree or order?
1. Whether the plaintiffs prove that they are the
owners of the suit property?
2. Whether the defendants prove that they are
the owners of the suit property by virtue of Gift
Deed dated 25.06.2004?
3. Whether the plaintiffs prove that the alleged
Gift Deed is a fabricated, forged and a void
document?
4. Whether the suit is bad for non-joinder of
necessary parties and mis-joinder of parties?
5. Whether the Court fee paid is sufficient?
6. Whether the plaintiff is entitled is entitled to
the declaration as sought for?
7. Whether the plaintiff is entitled to recover
possession of the suit property?
8. What Order or relief?
5.1. As stated above, common evidence was led by the
parties in the two suits. The learned Trial Court, by the
Impugned Judgment, dismissed the suit filed by the
appellant/plaintiff and suit of the respondent/defendant
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No.1 was decreed with costs. The Gift Deed was declared
as a void document and the appellant/plaintiff was directed
to hand over vacant possession of the suit property to
respondent/defendant No.1.
6. Aggrieved by the Impugned Judgment, the appellant/
plaintiff has filed two appeals, RFA No.333/2018 against
the dismissal of his suit O.S.No.7548/2005 and
R.F.A.No.185/2018 against the decree passed in
O.S.No.6483/2008.
7. Learned counsel for the appellant/plaintiff has
contended that the appellant/plaintiff had filed a suit for
declaration that he is the son of the
deceasedSri.C.Gangaiah and for the consequential relief of
restraining the Commissioner, BDA from transferring the
suit property in the name of respondent/defendant No.1.It
iscontended that since Sri.C.Gangaiah was unmarried, the
appellant/plaintiff was his foster son and Sri.C.Gangaiah
had executed a registered Gift Deed in favour of
appellant/plaintiff and that he had been put in
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possession of the suit property since then. However,
respondent/defendant (Smt. B.Sarojamma) who claimed
to be the wife of the deceased Sri.C.Gangaiah, has claimed
the suit property contending that she is entitled to the
same as the wife of the said Sri.C.Gangaiah.
7.1. In addition, learned counsel for appellant/plaintiff
submitted that Sri.C.Gangaiah died on 04.08.2004 at
Sanabagatta Village and a false death certificate was
created by respondent/defendant No.1 of Sri.C.Gangaiah
as if he had died on 11.09.2003 in Bangalore.
7.2. Learned counsel for the appellant/plaintiff further
contended that although the appellant/plaintiff was foster
son of Sri.C.Gangaiah, he was treated as his natural son
being the son of his younger brother Sri.Eranna. It was
stated that respondent/defendant No.1 did not attend to
the last rites and rituals of Sri.C.Gangaiah and was not
entitled to inherit rights to the property. It was also
averred that the respondent/defendant was not the legally
wedded wife of the said Sri.C.Gangaiah.
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8. Learned counsel for the respondent/defendant No.1
has reiterated the contentions as set out in
O.S.No.6483/2008. It is contended that Sri.C.Gangaiah
used to live in Sanabagatta, Tumkur District. He died on
11.09.2003 and that Smt. B.Sarojammais the lawful wife
of Sri.C.Gangaiah, and Sri.G.S.Venkatesh Kumar is the
only son of Sri.C.Gangaiah and they are the only persons
entitled to the property of Sri.C.Gangaiah to the exclusion
of appellant/plaintiff.
8.1. Learned counsel for the respondent/defendant No.1
has further contended that since the appellant/plaintiff was
the son of the brother of Sri.C.Gangaiah, he would visit his
house very often and because of his close relationship,
would also stay in the house. It was further stated that as
he had a detailed knowledge of all assets of
Sri.C.Gangaiah, he took the documents from the house of
Sri.C.Gangaiah, and manipulated and fabricated the Gift
Deed. It was further contended that the Gift Deed is
inadequately stamped and is thus void. In addition, it was
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stated by the appellant/plaintiff that the Gift Deed was
executed on 25.06.2004, which is impossible since by that
time, Sri.C.Gangaiah had already passed away. Lastly, it
was contended that the revenue record/khata was mutated
by virtue of the Gift Deed, and the tenant who was staying
in the suit property was evicted without the knowledge or
consent of the true owners of the property, Smt.
B.Sarojamma and Sri.G.S.Venkatesh Kumar.
9. Since the evidence was led before the learned Trial
Court in O.S.No.7548/2005, the appellant/Sri S.E.
Sreenivasaiah was treated as the plaintiff while
respondent/Smt. B.Sarojamma as the first defendant.Both
parties produced various documents in support of their
contentions. The appellant/plaintiff was examined as P.W.1
and he also examined his father, Sri.Eranna s/o late
Sri. Kariyappa, as well as Sri. Mariswamy Gowda s/o late
Sri. Channaiah, as P.W.2 and P.W.3respectively, in support
of his contentions. While the defendant No.2/
Sri.G.S.Venkatesh Kumar in O.S.No.7548/2005 was
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examined as D.W.1 in support of the case of
respondent/defendant No.1.
10. The learned Trial Court after examining the record
held that the adoption of appellant/plaintiff could not be
proved because there was no adoption deed, however, the
wedding card and photos proved the wedding of Smt.
B.Sarojamma with Sri.C.Gangaiah. In addition, the learned
Trial Court laid emphasis on the factum of death of
Sri.C.Gangaiah, and gave a finding based on the death
certificate that the death of Sri.C.Gangaiah took place on
11.09.2003, and hence, the Gift Deed dated 25.06.2004
could not be valid. The learned Trial Court premised it's
finding on the fact that the original Gift Deed was also not
produced.
11. In addition, on the other issues framed such as non-
joinder, deficiency of court fees, the learned Trial Court
found that the suit was not barred for non-joinder/
mis-joinder of necessary parties and that the court fees
paid was adequate in terms of the Karnataka Court-fee
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and Suits Valuation Act, 1958. A finding was also given
against the appellant/plaintiff that a suit for permanent
injunction was not maintainable without declaration of title
and since the suit filed by appellant/plaintiff did not seek a
declaration, the suit was hit by the provisions of the
Specific Relief Act, 1963.
12. The following facts are undisputed. Sri.C.Gangaiah
was an employee in Bharat Electronics (Private) Ltd. as
Grade 'B' Clerk. He was residing at Sanabagatta till 1985,
and thereafter,he shifted to Bangalore. The
appellant/plaintiff was not the natural born son of
Sri. C.Gangaiah, but was the son of his younger brother
Sri.Eranna. The S.S.L.C. Marks Card (Ex.D5) of the
appellant/plaintiff gives the date of birth as 01.02.1970
and his father's name as Sri.Eranna.
12.1 Late Sri. C.Gangaiah was allotted a site bearing
No.206 (re-numbered as 206/15) by the City Improvement
Trust Board, which is presently called as the Bangalore
Development Authority (BDA). The BDA had executed a
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Lease-cum-Sale Agreement of the said site in favour of Sri.
C.Gangaiah on 07.05.1975 and Sri. C.Gangaiah became
the absolute owner with all rights, title and interest over
the said property. A possession certificate was issued in his
name on 06.08.1975. The dispute is in respect of the said
property. The appellant/plaintiff has claimed rights over
the property on the basis of the Gift Deed dated
25.06.2004, whereas, the respondents/defendants have
claimed a right over the said property (suit property) on
the basis of inheritance.
13. The issue that arises for determination in these
appeals is whether the findings recorded by the
learned Trial Court that the Gift Deed dated 25.06.2004
was a forged and void document, and the
respondents/defendants are entitled for possession and
enjoyment of the suit property on the basis of inheritance,
are in accordance with the evidence produced or require
interference?
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14. One of the principal contentions that the Impugned
Judgment premises itself is on the factum of the date of
death of Sri.C.Gangaiah. On an enquiry of death of
Sri.C.Gangaiah, the Tahsildar gave a finding that the death
occurred on 11.09.2003 in Sanabagatta, and not on
04.08.2004. Thus, the death certificate previously issued
was cancelled.
15. The BDA has in its Written Statement averred that on
examination of the Gift Deed, the photographs of
Sri.C.Gangaiah in the Gift Deed and the earlier Sale Deed
of 03.07.1975 do not tally. On an enquiry conducted by
the Superintendent of Police, it was found that the transfer
of the property occurred after the death of Sri.C.Gangaiah
and that the appellant/plaintiff submitted false documents
to BDA for its transfer. The relevant paragraphs of the
Written Statement of Respondent No.2/BDA in this behalf
are reproduced below:-
"3. It is false to state that Sri.C.Gangaiah had executed
the gift deed on 25.06.2004 on behalf of the plaintiff.
The said gift deed is a forged document executed
by someone else claiming to be Sri.C.Gangaiah. The
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averments alleged in the gift deed that the plaintiff is the
son of Sri.C.Gangaiah is denied as false and the plaintiff
is put to strict proof of the same.
4. It is submitted that after the death of
Sri.C.Gangaiah in the year 2004 the plaintiff made a
representation to the 2nd defendant seeking
transfer of the scheduled site in his favour on the
basis of the gift deed alleged to have been
executed in his favour. All the time of applying for
the transfer of the suit scheduled site the plaintiff
has produced certain documents to prove that he is
son of Sri.C.Gangaiah. Subsequently the 1st
defendant, wife of late Sri.C.Gangaiah made a
representation to the 2nd defendant seeking
transfer of the suite scheduled suit in her
favour.The 1st defendant at the time of applying for the
transfer of the said site to her name has also produced
certain documents to prove that she is the wife of late
Sri.C.Gangaiah.
xxxx xxxx xxxx
6. It is submitted that after examining the documents
submitted by the plaintiff and the 1st defendant, the
superintendent of the 2nd defendant has come to a
conclusion that the 1st defendant is the wife of
Sri.C.Gangaiah.
xxxx xxxx xxxx
8. It is submitted that on examining the gift deed alleged
to have been done by Sri. C.Gangaiah in favour of the
plaintiff,the Superintendent of the 2nd defendant
was also of the view that the thumb impression of
Sri.C.Gangaiah in the gift deed and thumb
impression in the sale deed dated 03.07.1975 does
not tally. The photograph of Sri.C.Gangaiah in the
gift deed and the photograph produced by the 1st
defendant does not tally. Hence the superintendent
of police was of the view that the plaintiff has got
the gift deed registered after the death of
Sri.C.Gangaiah by taking some third person to the
sub-registrar office.
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xxxx xxxx xxxx
11. It is submitted that the superintendent of police of
the 2nd defendant also examined the documents
submitted by the 1st defendant and is finally of the view
that it is the pre-planned programmed by the plaintiff to
grab the suit schedule property in his favour.
12. It is submitted that on the basis of the
enquiryconducted by the superintendent of police
the 2nd defendant can proceed in transferring the
suit schedule site in favour of the 1st defendant."
[Emphasis Supplied]
16. Clearly, if the date of death of Sri.C.Gangaiah was
not 04.08.2004 as per the earlier death certificate issued,
and Sri.C.Gangaiah died on 11.09.2003, the question of
Gift Deed being in existence would not arise. Once the
factum of death on 11.09.2003 is proved, the issue would
become moot.
17. Both appellant/plaintiff and respondent/defendant
No.1 produced documents and evidence in support of their
respective contentions on two different dates of death. The
details surrounding the death become clear from evidence
produced. The appellant/plaintiff examined himself as a
witness (P.W.1) along with his father Sri.Eranna (PW.2)
and a temple poojary (PW.3). These persons confirmed
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that Sri.C.Gangaiah died on 04.08.2004 and was cremated
at Sanabagatta. On the other hand, Sri.G.S.Venkatesh
Kumar (D.W.1) contended that Sri C.Gangaiah died on
11.09.2003 at Sanabagatta. However, he was not present
there at the time of the death. Both parties adduced
documents, Ex.P1 to Ex.P60 by the appellant/plaintiff and
Ex.D1 to Ex.D18 by the respondents/defendants.
18. As stated above, the principal issue that would arise
is as to whether the Gift Deed dated 25.06.2004 (Ex.P6)
was a forged and fabricated document.The Impugned
Judgment premises itself on the fact that death certificate
dated 04.08.2004 is fabricated, and thus, the Gift Deed
dated 25.06.2004 could not have been executed.
19. The case of the appellant/plaintiff that was pleaded
before the learned Trial Court is that Sri. C.Gangaiah died
on 04.08.2004 at Bengaluru and the funeral and last
rituals were performed at Sanabagatta Village. In support
of this stand, the appellant/plaintiff produced the death
certificate(s) of Sri. C.Gangaiah issued by the Bengaluru
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Mahanagara Palike, [Ex.P3] and [Ex.P20], the Certificate
issued by Dr. Vanaja Shivakumar [Ex.P21] and a
Certificate issued by the Village Accountant about the
funeral of Sri C.Gangaiah [Ex.P22]. In addition, several
other documents were produced bythe appellant/plaintiff.
These include a Report dated21.03.2011 of the Tahsildar
[Ex.P34], a statement of P.W.2 (date not available in
translated copy) given before the Tahsildar [Ex.P35], the
notices dated 07.09.2010 issued by the Tahsildar to the
son of deceased defendant and the plaintiff [Ex.P36,
Ex.P37, Ex.P40 and Ex.P42], the statement of the villager
[Ex.P45], and the statement of the deceased defendant
[Ex.P51] before the Tahsildar. The other death certificate
of Sri C.Gangaiah was marked as Ex.P.54 showing the date
of death as 11.09.2003 and the endorsement issued by the
Public Information Officer was marked as Ex.P.55.
19.1. The respondents/defendants on the other hand
produced the copy of the letter dated 13.10.2006
addressed to the Tahsildar by the BBMP [Ex.D3], the copy
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of the order passed by the Joint Director, Bengaluru
Mahanagara Palike dated 13.10.2006 [Ex.D4] and the
death certificate of Sri C. Gangaiah issued by the Tahsildar
[Ex.D14].
20. Undisputibly, PW-2 is the father of the
appellant/plaintiff. In his examination-in-chief, he had
stated that Sri C.Gangaiah died on 04.08.2004. However,
in the cross-examination, he had stated that he was made
nominee by Sri C. Gangaiah in respect of deposits in
Canara Bank and he withdrew the said amount in 2003.
Clearly, the amounts could only have been withdrawn after
the death of Sri C.Gangaiah and not before. The relevant
extract is as below:
Deposition of PW -2 in Examination-in-Chief:
Because our elder brother Sri. C. Gangayya was
unmarried and did not marry, when he asked us, we
gladly gave the plaintiff S. E. Srinivasaiah (plaintiff) for
adoption. Therefore, our son S. E. Srinivasaiah (plaintiff)
has only biological parents, and in real life, Sri. C.
Gangayya, our elder brother, is the true father of S. E.
Srinivasaiah (plaintiff) in every way. Since S. E.
Srinivasaiah (plaintiff) was aware, Sri. C. Gangayya has
been his father. Our elder brother Sri. C. Gangayya
passed away on 04-08-2004. We performed his
funeral rites and other rituals in our village
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according to Hindu customs under the leadership of
our son S. E. Srinivasaiah (plaintiff). Therefore, we
obtained the death confirmation certificate from our
village, which has been submitted to the Honorable
Court.
Deposition of PW -2 in Cross-Examination:
PW. 1 is my son. I cannot identify signature of PW.1. One
Gangaiah is my elder brother. I cannot identify signature
of my elder brother Gangaiah. I heard that my said
brother used to sign in Kannada as well as English. It is
true to suggest that I was nominee with respect to
deposit in Canara Bank made by Gangaiah.I
withdrawn said FD amount. I may be withdrawn
said FD amount in 2003.
[Emphasis Supplied]
20.1. In addition, an examination of the statement given
by P.W.2 to the Tahasildar, Kunigal Taluk, shows that
Sri Eranna has stated that Sri.C.Gangaiah was unmarried
due to his poor health and was being looked after by him
and appellant/plaintiff, Sri. S.E.Sreenivasaiah. This
document however contains an admission by Sri.Eranna,
father of Sri.S.E.Sreenivasaiah, that Sri. C.Gangaiah
passed away on 11.09.2003 in Sanabagatta village, and
funeral and other rites were conducted by Sri.Eranna and
Sri. S.E.Sreenivasaiah. This would also tally with the death
certificate dated 11.09.2003 issued by the Registrar of
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Births and Deaths which was produced by the
appellant/plaintiff Sri S.E.Sreenivasaiah and he gave the
date of death Sri.C.Gangaiah as 11.09.2003 which is
exhibited at Ex.P54. It is apposite to set out the relevant
extract of this statement below:
"Kunigal Taluk Tahsildar (in person) statement written
by me, M.C. Yada Eeranna Bin Late Kariappa of
Sanabaghatta village, Amruthur Hobli, is as follows:
On Tuesday, 30-11-2010,I was present to
investigate the death of Sri C. Gangayya Bin
Kariappa of Sanabaghatta village. My elder
brother, C. Gangayya, was employed at B.E.L. Factory
in Bangalore and resided at our home. Due to his
poor health, he was unmarried. His well-being
was looked after by me and my son Srinivasayya
(the adopted son of C. Gangayya). He passed
away on 11-09-2003 in Sanabaghatta village,
and his funeral and other rites were conducted
by me and his adopted son S.I. Srinivasayya. I do
not know who Smt. Sarojamma and Venkatesh Kumar
are. Regarding my brother's death, we signed a
statement on 27-09-2009 to the Sheshadripuram
Police in Bangalore out of fear without reading it. I
have read and signed this statement after
understanding it."
[Emphasis Supplied]
21. Insofar as concerns the death certificate dated
04.08.2004 [Ex-P3] produced by the appellant/plaintiff, an
enquiry was conducted by the Bangalore Municipal
Corporation based on a communication issued by the
Tahasildar, Kunigal Taluk. The communication dated
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13.10.2006 is exhibited as Ex.D3 and sets out that the
date of death of Sri. C.Gangaiah has been fraudulently
registered as 04.08.2004 in the office of the Health and
Medical Officer, Rajajinagar, Bangalore [Reg.No.479], and
this registration has to be cancelled. It further sets out
that the person responsible for this registration is the
appellant/plaintiff-Sri. S.E.Sreenivasaiah and that a police
complaint should be registered against him. The relevant
extract is below:
"Bangalore Municipal Corporation
No.JDS/Staff/PR/120/06
Office of the Commissioner, Numeric Division
10th Floor, PU Building
MG Road, Bangalore,
Date: 13/10/06.
To,
Tahsildar,
Kunigal Taluk,
Tumkur District,
Respected Sir,
Subject: Regarding the fraudulent registration of
the death date of late shri C. Gangayya Bin
Kariappa, Kunigal Taluk, Sanabhaghatta village,
as 04/08/04.
Reference: 1) Your letter No.R.N.K.M.Y. Siddupadi:
01/05/06 dated: 27/06/05.
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2) No.A.S.A.N. 38/J.M.N. 17377/2004 dated:
25.07.05.
Regarding the subject, the death date of late Shri
C.Gangayya Bin Kariappa, Kunigal Taluk,
Sanabhaghatta Village, has been fraudulently
registered as 04/08/04 in the office of the Health
Medical Officer, Rajajinagar, Bangalore (Registration
No. 479).This registration has been ordered to be
canceled.
The person responsible for this fraudulent
registration, Mr. S.E. Srinivasaiah Bin Eranna,
former address No.7, 15th Main Road, J.C. Nagar,
Kurubarahalli, Bangalore, is to be traced through
the police department and a criminal case is to
be filed against him for prosecution and
punishment."
Yours faithfully,
Signature/-
Joint Director (in-charge)
Bangalore Municipal Corporation
Copy to: Chief Birth and Death Registration Officers
and Director, 7th Floor, Visvesvaraya Tower, Ambedkar
Veedhi, Bangalore-560001.
Signature/-
Tahsildar
Kunigal Taluk"
[Emphasis supplied]
22. Based on this communication, the death certificate
dated 04.08.2004 of Sri C.Gangaiah was cancelled by the
Tahasildar, Kunigal Taluk. The cancellation letter exhibited
as Ex.D4, also sets out that the copy of the cause of death
report submitted is false. Hence, it directs the cancellation
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of the death certificate dated 04.08.2004. The relevant
extract is set out below.
"The Health Medical Officer, Rajajinagar, has verified
and reported that the death date of late Shri C.
Gangayya as 04.08.2004 is false and that Mr. S.E.
Srinivasaiah, No. 7, 15th Main Road, J.C. Nagar,
Kurubarahalli, does not reside at the given address and has
recently vacated the house.Furthermore,
Mrs.Sunandamma, President of Huliyur Durga Gram
Panchayat, has confirmed that she participated in the
funeral on 04.08.2004, which is false as there is no
one by that name. Additionally, the copy of the death
cause report submitted is also false as the reporting
doctor does not exist.
Based on the above, the Tahsildar, Kunigal, has verified the
report from the Health Medical Officer, Rajajinagar, and
issued an order under Section 25 of the Birth and Death
Registration Act, 1969.
ORDER
Considering that the registration of the death of Shri
C. Gangayya Bin Kariappa on 04.08.2004 under Death
Registration No. 479 at the office of the Health
Medical Officer, Rajajinagar, was fraudulently done, it
is hereby canceled with immediate effect.
Bangalore Municipal Corporation
Chief Birth and Death Registration Officers and Director, 7th
Floor, Visvesvaraya Tower, Ambedkar Veedhi, Bangalore-
560001."
[Emphasis Supplied]
23. The appellant/plaintiff has also in fact produced
evidence in support of the date of death being in
2003.Ex.P51 is the statement given by the
respondent/defendant Smt.B.Sarojamma before the
Tahasildar, Bangalore Development Authority, during the
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enquiry conducted by the Special Tahasildar of BDA.
The respondent/defendant Smt.B.Sarojamma has
clarifiedabout her marriage and confirmed that she has
two sons, Sri. G.S.Venkatesh Kumar and Sri. Bhavani
Shankar. She submits that SriBhavani Shankar is not her
biological son but he was given to her as a child, and she
had raised him as her own son. She states that she
married Sri C.Gangaiah in 1956. He was from Sanabagatta
Village, Kunigal Taluk and was working in Bengaluru before
marriage. After marriage, they lived in Sriramapura's slum
area. In 1969-70, they moved to Vyalikaval and
Sri.C.Gangaiah continued to go to work from there. She
stated that she livedwith Sri.C.Gangaiah at both the places
i.e., Sriramapura and Vyalikaval. She further stated that
Site No.206 was allotted by the BDA in Gangenahalli,
Hebbal. During the lifetime of Sri. C. Gangaiah, they never
lived in the house constructed on the aforesaid site, but
were living in Sriramapura slum area. However, Sri.
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C.Gangaiah used to live in Gangenahalli rather than in
Sriramapura, and she used to visit him occasionally.
23.1. Smt. B Sarojamma also sets out in the statement
that Sri. C.Gangaiah was suffering from ill-health and
preferred to live in Gangenahalli where she would visit him
occasionally. She further admitted that Sri. S.E.
Sreenivasaiah would come and stay with him, and that
Sri.C.Gangaiah would stay in his brother's house
Sanabagatta. The relevant extract is reproduced below:
"I have been residing at the above address for many years.
I have two sons: 1.G.S.Venkatesh Kumar, 2.Bhavani
Shankar. We all live together at the above house. Though
Bhavani Shankar is not my biological son, he was
given to me as a child and I have raised him as my
own sonand have mentioned him as my son in all records.
I married my husband C.Gangaiah in 1956. He was
from Sanabaghatta village, Kunigal Taluk, and was working
in Bangalore before our marriage. After our marriage,
we lived in Srirampura's slum area. In 1969-70, we
moved to vyalikaval and he continued to go to work
from there. I lived in both Srirampura and Vyalikaval.
In 1973, we applied for a site from BDA in Vyalikaval,
and accordingly, we were allotted site number 206 in
Gangenahalli, Hebbal. During this time, as we were not
staying at home and were living in Srirampura's slum area,
my husband used to come home occasionally and inform
us.Since he was living in Vyalikaval and visiting home once
a week, my name was not included in the records given to
BDA.
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As proof that Gangayya is my husband, I have
provided information from the voter I.D card of our
current address and educational certificates of our
children, which confirm that Gangaiah is their father.
Additionally I have provided the wedding invitation of my
son Venkatesh Kumar, which confirms that Gangayya is my
husband and I am the mother.
My husband Gangayya, who was suffering from ill health,
preferred to live in Gangenahalli rather than with us
in Sriramapura. I used to visit him occasionally.
During that time, I was also suffering from ill health and
was admitted to the hospital. To take care of him, S.E.
Srinivas, the son of Gangayya's brother Eeranna,
came and stayed with him. Later, Gangayya stayed in
his brother's house in Sanabaghatta as he wished.
On 11-09-03, he passed away in Sanabaghatta. We
were informed about his death after the funeral rites
were performed. When we went to inquire, it was
evening, and they said it was not possible to provide proper
information."
[Emphasis Supplied]
23.2.In addition, in the statement, it was further stated by
Smt. B.Sarojamma that when she searched for records
after the death of Sri. C.Gangaiah with respect to suit
schedule property [property bearing BDA 206, Municipal
No.206-15], it was found that the same was in the name
of Sri.S.E.Sreenivasaiah and that it was pursuant to a
registered Gift Deed that the transfer of records had been
done.
"Later, I searched for the records of site
number 206 allotted in my husband's name and
found them. Upon inquiry at the municipal
corporation, it was found that the account was in the
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name of S.E. Srinivas. Upon further investigation,
it was found that Srinivas had registered a gift
deed claiming to be Gangayya's son. I have
submitted an application to BDA for the transfer
of records with the details of the fraud.
[Emphasis Supplied]
23.3. She further admitted that Sri S.E.Sreenivasaiah also
created a record claiming to be son of Sri.C.Gangaiah and
included his name in the ration card and other documents.
The statement also sets out that a letter from Tahsildar,
Kunigal Taluk dated 27.06.2005 states that
Sri. C.Gangaiah passed away on 11.09.2003 which was
confirmed through the village residents and mahazar that
was conducted by the Tahasildar. The relevant extract set
out below:
"My husband was born in Sanabaghatta village,
Kunigal Taluk and had a brother named Eeranna.
Eeranna had two sons 1. S.E.Srinivas, 2.S.E....."
"Among them, the eldest son S.E. Srinivas is the
son of Eeranna. He created records claiming to be
the son of Gangayya and included his name in the
ration card and other documents. He passed away
on 11-9-2003. On 4-8-2004, it was found that
Gangayya had passed away and that a gift deed
was registered on 25-06-2004. The Tahsildar of
Kunigal Taluk provided a death certificate and voter
list of Eeranna's family, which clarified the details in
the gift deed.
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A letter from the Tahsildar of Kunigal Taluk dated
27-06-2005 states that Gangayya passed away on 11-
9-2003, confirmed through the village residents'
statements and conducted mahazar. Therefore, the
death certificate issued in Bangalore on 9-8-
2004 should be canceled, and a letter from the
Birth and Death Registration Department is
presented."
[Emphasis Supplied]
24. Inaddition, the respondents/defendants have
also produced Ex.D12 and Ex.D13, which are voter
ID cards issued in the names of Smt.B.Sarojamma and
Sri.G.S.Venkatesh Kumar respectively, showing husband/
father's name as Sri. C.Gangaiah.
25. Clearly, thus, there is an overwhelming evidence that
Sri.C.Gangaiah did not die on 04.08.2004 but on
11.09.2003. Thus, on the basis of oral and documentary
evidence produced by the parties, the factum of death of
Sri. C.Gangaiah was established as on 11.09.2003 and not
04.08.2004. Ergo, it leads to the conclusion that the Gift
Deed dated 25.06.2004 could not have been executed by
Sri. C.Gangaiah at all. Since appellant/plaintiff has claimed
rights on the basis of a Gift Deed which has conclusively
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been proven to be a fabricated document, the
appellant/plaintiff cannot claim any right through the Gift
Deed. The learned Trial Court thus had rightly dismissed
the suit filed by the appellant/plaintiff.
26. As stated above, the appellant/plaintiff has filed an
application under Order 41 Rule 27 of the CPC, 1908 to
adduce further evidence. This Court has examined the
application. It is stated in the application that these
documents have a bearing on the merits of the case and
that the documents could not be produced earlier as they
were seized by the police in C.C.No.3778/2009. The
appellant/plaintiff has requested that these documents be
produced as additional evidence:
"1. Letter dated 01.06.2015 written by
Assistant Director of Food and Civil Supplies
to Appellant.
2. Letter dated 14.03.2022 written by
Assistant Director of Food and Civil Supplies
to Appellant.
3. Certified copy of Ration card of Sarojamma
filed in C.C.No.3778/2009.
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4. Certified copy of evidence of
G.S.Venkatesh Kumar in C.C.No.3778/2009.
5. Certified copy of judgment dated
24.02.2021 in C.C.No.3778/2009.
6. The Death Certificate issued by Village
Accountant filed in C.C.No. 3778/2009 and
referred in the judgment.
7. The Voter List filed in C.C.No.3778/2009.
8. Certified copy of the electoral card dated
19.09.1992 in the interests of justice and
equity."
26.1. By order dated 20.06.2023, it was directed that this
application shall be decided at the time of final hearing in
the matter. Although this Application was not argued by
the appellant/plaintiff, this Court has examined the
documents filed. A perusal of these documents show that
the documents at Sl.Nos.1, 2 and 8 do not relate to
C.C.No.3778/2009. However, document Nos.3 to 7 form
part of the criminal proceedings in C.C.No.3778/2009
which were initiated against the appellant/plaintiff.
26.2. The death certificate at document No.6 shows the
date of death of Sri. C.Gangaiah as 11.09.2003. The only
reason stated in the application filed as to why the
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appellant/plaintiff has failed to produce these documents
previously, is that they were part of the documents in the
criminal proceedings. No other reason is forthcoming in the
application for production of additional documents.
27. The Supreme Court in Union of India Vs. Ibrahim
Uddin and another1has held that the power under Order
XLI Rule 27 of the CPC is an exception and not a rule, and
additional evidence cannot be permitted to fill up lacunae
or to improve a party's case. It has been categorically held
that where the evidence on record is sufficient to enable
the Appellate Court to pronounce judgment, no additional
evidence can be allowed. It is apposite to set out relevant
extract below:
"36.The general principle is that the appellate court
should not travel outside the record of the lower court
and cannot take any evidence in appeal. However, as
an exception, Order 41 Rule 27 CPC enables the
appellate court to take additional evidence in
exceptional circumstances. The appellate court
may permit additional evidence only and only if
the conditions laid down in this Rule are found
to exist. The parties are not entitled, as of right, to
the admission of such evidence. Thus, the provision
does not apply, when on the basis of the
(2012) 8 SCC 148
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evidence on record, the appellate court can
pronounce a satisfactory judgment. The matter
is entirely within the discretion of the court and
is to be used sparingly. Such a discretion is only a
judicial discretion circumscribed by the limitation
specified in the Rule itself. (Vide
K.Venkataramiahv.A.Seetharama Reddy2, Municipal
Corporation. Of Greater Bombay v. Lala Pancham3,
Soonda Ramv. Rameshwarlal4 and Syed Abdul Khader
v.Rami Reddy5.
xxx xxx xxxx
49. An application under Order 41 Rule 27 CPC is to
be considered at the time of hearing of appeal on
merits soas to find out whether the documents and/or
the evidence sought to be adduced have any
relevance/bearing on the issues involved. The
admissibility of additional evidence does not depend
upon the relevancy to the issue on hand, or on the
fact, whether the applicant had an opportunity for
adducing such evidence at an earlier stage or not, but
it depends upon whether or not the appellate court
requires the evidence sought to be adduced to enable
it to pronounce judgment or for any other substantial
cause. The true test, therefore is, whether the
appellate court is able to pronounce judgment
on the materials before it without taking into
consideration the additional evidence sought to
be adduced. Such occasion would arise only if on
examining the evidence as it stands the court
comes to the conclusion that some inherent
lacuna or defect becomes apparent to the court.
(Vide Arjan Singh v. Kartar Singh6 and Natha
Singh v. Financial Commr., Taxation7.)"
[Emphasis Supplied]
AIR 1963 SC 1526
AIR 1965 SC 1008
(1975) 3 SCC 698
(1979) 2 SCC 601
61951 SCC 178
7(1976) 3 SCC 28
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28. In the present case, the appellant/plaintiff had
already produced more than 60 documents which have
been discussed and relied upon in the Impugned
Judgment. This Court has also examined the evidence
produced by both parties. The additional evidence would
only be requisite if evidence before this Court is not
sufficient, which it is. In addition,the learned Senior
Counsel for the appellant/plaintiff has also not insisted on
taking these documents on record while arguing the
matter finally.
29. It is settled law that civil proceedings are required to
be decided on the preponderance of probability, which is
unlike criminal proceedings that require higher burden of
prooffor a conviction. Thus, reliance thereon could not
change the nature of the outcome in the civil proceedings.
In addition and as stated above, there is already sufficient
material on record which has been examined by this Court.
30. In view of the aforegoing discussions, this Court finds
no ground to interfere with the ImpugnedCommon
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Judgment and Decree in two suits.The appeals are
accordingly dismissed.The pending application is also
dismissed.
31. No order as to costs.
Sd/-
(D K SINGH)
JUDGE
Sd/-
(TARA VITASTA GANJU)
JUDGE
YN
List No.: 1 Sl No.:2
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