Karnataka High Court
Smt Seethamma @ Nanjamma (Dead)Her Lrs vs Smt Gowramma W/O Ramaiah on 10 March, 2026
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR JUSTICE M.G.S.KAMAL
REGULAR FIRST APPEAL NO.2274 OF 2006 (DEC)
C/W
REGULAR FIRST APPEAL NO.1833 OF 2019
IN R.F.A. NO. 2274/2006
BETWEEN:
SMT SEETHAMMA @ NANJAMMA
(DEAD) HER LRS
1. SMT.LAKSHMAMMA
SINCE DEAD BY HER LRS
(a). VENKATESH S/O KENCHAPPA
AGED ABOUT 25 YEARS
(b). NAGARAJ S/O KENCHAPPA
AGED ABOUT 23 YEARS
2. CHIKKEGOWDA S/O LATE SEETHAMMA
SINCE DEAD BY LR'S
2(a) NAGARATHNAMMA
W/O LATE CHIKKE GOWDA
AGED ABOUT 55 YEARS
KODUR VILLAGE
MALUR TALUK, KOLAR DISTRICT.
2(b) PAVITHRA
D/O LATE CHILLE GOWDA
AGED ABOUT 33 YEARS
HINDLAVADI VILLAGE
KASABA HOBLI
-2-
ANEKAL TALUK.
2(c) KUSUMA
D/O LATE CHIKKE GOWDA
AGED ABOUT 31 YEARS
ITTANGUR VILLAGE
ANEKAL TALUK.
3. GANGAMMA
D/O LATE SEETHAMMA
SINCE DEAD BY LR'S
3(a) MANJULA
D/O LATE GANGAMMA
AGED ABOUT 35 YEARS
R/AT NO.2/2
MADHURANAGAR 1ST STAGE
JANATHA HOUSE,VARTHUR EAST
BENGALURU.
4. HOSARAYAPPA
S/O LATE SEETHAMMA
SINCE DEAD BY LR'S
4(a) SAROJAMMA
W/O LATE HOSARAYAPPA
AGED ABOUT 55 YEARS
4(b) MANIKANTA
S/O HOSARAYAPPA
AGED ABOUT 31 YEARS
APPELLANT 4(a) AND 4(b) ARE
R/AT KEMPASANDRA POST
BEHIND D.S.F.S. CHURCH
ELECTRONIC CITY
BENGALURU.
4(c) KOMALA
D/O LATE HOSARAYAPPA
AGED ABOUT 28 YEARS
R/A NO.358,
MUDAGALAMMA TEMPLE ROAD
-3-
DEVANAHALLI TOWN
DEVANAHALLI TALUK
BENGALURU.
5. DUGGAPPA S/O LATE SEETHAMMA
AGED ABOUT 44 YEARS
6. SURESH S/O LATE SEETHAMMA
SINCE DEAD BY LRS
6(a) RATHNAMMA
W/O LATE SURESH
AGED ABOUT 40 YEARS
6(b) VANAJA
D/O LATE SURESH
AGED ABOUT 21 YEARS
6(c) DIVYA
D/O LATE SURESH
AGED ABOUT 19 YEARS
6(a) TO 6(c) ARE R/AT
KTHAGANURU VILLAGE AND POST
ANEKAL TALUK
BENGALURU RURAL DISTRICT.
7. SHARADAMMA
D/O LATE SEETHAMMA
AGED ABOUT 42 YEARS
R/AT GUNJOOR PALYA,
GUNJOOR POST
VARTHUR HOBLI,
BANGALORE EAST - 560 087.
... APPELLANTS
(BY SRI. K. SHRIHARI., ADVOCATE)
AND:
1. SMT GOWRAMMA
W/O RAMAIAH
AGED ABOUT 30 YEARS
-4-
2. SRI. RAMAKRISHNAPPA
S/O KEMPARAPPA
AGED ABOUT 45 YEARS
BOTH ARE R/AT
HINDALABELE VILLAGE
ATTIBELE HOBLI
ANEKAL TALUK - 562 106.
SINCE DEAD BY LRS.,
2(a) RUDRAMMA
D/O RAMAKRISHNAPPA
2(b) PAPAMMA
D/O RAMAKRISHNAPPA
2(c) LAKSHMAMMA
D/O RAMAKRISHNAPPA
2(d) AMAR NARAYAN
S/O RAMAKRISHNAPPA
RESPONDENTS NO.2(a) TO 2(d)
ARE R/AT INDALABELE VILLAGE
ATTIBELE HOBLI
ANEKAL TALUK - 562 106.
2(e) LAKSHMI
W/O SRINIVAS
D/O RAMAKRISHNAPPA
2(f) NIVEDITHA
D/O LAKSHMI
-5-
2(g) PREETHI
D/O LAKSHMI
RESPONDENTS NO.2(e) TO 2(g) ARE
R/AT NO.1/242, SATHINAYAKANAPALLI VILLAGE
KAKKADASAM THARAPPU
KAKKADASAM POST
DENKANIKOTTAI, KRISHNAGIRI
TAMIL NADU - 635 107.
3. M/s.SHREE DHANALAKSHMI HIGH -TECH-CITY
PROMOTERS AND DEVELOPERS
#136, KAMALMANOHAR
4TH A CROSS, EAST OF NGEF L/O
KASTURI NAGAR, BENGALURU - 560 038
REP. BY ITS MANAGING DIRECTOR
4. MR. R. SHANKAR
AGED ABOUT 42 YEARS
S/O LATE RAMACHANDRAPPA
NO.136, KAMALMANOHAR
4TH A CROSS, EAST OF NGEF L/O
KASTURI NAGAR,
BENGALURU - 560 038.
5. MOHAN MONOHAR MUNGALE
AGED ABOUT 50 YEARS
S/O MONOHAR NARAYAN MUNGALE
NO.136, KAMALMANOHAR
4TH A CROSS, EAST OF NGEF L/O
KASTURI NAGAR, BENGALURU - 560 038.
... RESPONDENTS
(BY SRI. M T JAGAN MOHAN, ADVOCATE FOR R1;
V/O DATED 15.02.2024, SRI. S. RAJASHEKAR., ADVOCATE
FOR LR's OF DECEASED R2;
V/O DATED 25.11.2009 R3, R4 AND R5 ARE SERVED
THROUGH PAPER PUBLICATION)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC., AGAINST THE JUDGMENT AND DECREE DT.
-6-
29.09.2006 PASSED IN O.S.NO.111/2006 ON THE FILE OF THE
CIVIL JUDGE (SR.DN.) & JMFC., ANEKAL, DISMISSING THE
SUIT FOR PARTITION.
IN R.F.A. NO. 1833/2019
BETWEEN:
SMT.GOWRAMMA
W/O RAMAIAH
AGED ABOUT 63 YEARS,
R/AT INDALABELE VILLAGE,
ATTIBELEHOBLI, ANEKAL TALUK,
BANGALORE DISTRICT.
... APPELLANT
(BY SRI. M.T. JAGAN MOHAN, ADVOCATE)
AND:
1. SRI. RAMAKRISHNAPPA
S/O KEMPARAPPA,
SINCE DEAD BY LRS
2. SMT. RUDRAMMA
D/O RAMAKRISHNAPPA
AGED ABOUT 43 YEARS
3. CHINNAIAH
S/O RAMAKRISHNAPPA
AGED ABOUT 38 YEARS
4. PAPAMMA
D/O RAMAKRISHNAPPA
AGED ABOUT 35 YEARS
5. LAKSHAMMA
D/O RAMAKRISHNAPPA
AGED ABOUT 32 YEARS
6. AMARESH
S/O RAMAKRISHNAPPA
-7-
(NOW 6TH RESPONDENT IS MAJOR
ALL ARE R/AT INDALABELE VILLAGE,
ATTIBELE HOBLI, ANEKAL TALUK,
BANGALORE DISTRICT.
7. SMT. SEETHAMMA @ NANJAMMA
WIFE OF MUNIYAPPA
SINCE DEAD BY LRS.
7(a) CHIKKEGOWDA
S/O LATE SEETHAMMA
SINCE DEAD BY LRS
7(i) SMT. PAVITHRA D/O LATE CHIKKEGOWDA
W/O ANNAYAPPA
AGED ABOUT 33 YEARS,
RESIDING AT INDULAVADI POST,
INDULAVADI GRAMA,
ANEKAL TALUK,
BENGALURU RURAL DISTRICT.
7(ii) KUSUMA D/O LATE CHIKKEGOWDA
W/O BABU.
R/AT.SARJJAPURA POST.
ETTANGARU GRAMA,
ANEKAL TALUK,
BANGALORE DISTRICT.
7(iii) SMT. NAGAMMA W/O LATE CHIKKEGOWDA
AGED ABOUT 60 YEARS,
RESIDING AT INDULAVADI POST,
INDULAVADI GRAMA,
ANAKEL TALUK,
BENGALURU RURAL DISTRICT.
7(b) GANGAMMA
D/O LATE SEETHAMMA
W/O RAMAKRISHNAPPA
AGED ABOUT 70 YEARS
7(c) HOSARAYAPPA
S/O LATE SEETHAMMA
AGED ABOUT 68 YEARS
-8-
7(d) DUGGAPPA
S/O LATE SEETHAMMA
AGED ABOUT 66 YEARS
7(e) SHARADAMMA
D/O LATE SEETHAMMA
AGED ABOUT 64 YEARS W/O DEVARAJJU
7(f) SURESH
S/O LATE SEETHAMMA
AGED ABOUT 62 YEARS
RESPONDENT NOs. 2 TO 5 AND 7
R/AT KADUR VILLAGE
LAKKUR HOBLI, MALUR TALUK
KOLAR DISTRICT
... RESPONDENTS
(BY SRI. K. SHRIHARI, ADVOCATE FOR R2 TO R6, R7(A) (i to
iii) & R7 (b) TO (f)
V/O DATED 15.02.2024, R2 TO R6 ARE TREATED AS LR's
OF DECEASED R1)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 AND ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT
AND DECREE DATED 29.09.2006 PASSED IN O.S.NO.112/2006
ON THE FILE OF THE CIVIL JUDGE [SR.DN.] AND JMFC.,
ANEKAL, DISMISSING SUIT FOR PARTITION.
THESE REGULAR FIRST APPEALS HAVING BEEN HEARD
AND RESERVED ON 28.01.2026 FOR JUDGMENT COMING ON
FOR PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
CORAM: HON'BLE MR JUSTICE M.G.S.KAMAL
-9-
CAV JUDGMENT
(PER: HON’BLE MR. JUSTICE M.G.S.KAMAL)
These two appeals by the plaintiffs in O.S.No.111/2006
(Old Case No.64/1996) and in O.S.No.112/2006 (Old Case
No.48/96 and No.71/2000) being aggrieved by the common
Judgment and Decree dated 29.09.2006 passed by the learned
Civil Judge, Senior Division and JMFC, Anekal (hereafter
referred to as `trial Court’) dismissing the said suits filed by the
plaintiffs seeking relief of partition.
2. Plaintiff in O.S.No.111/2006 namely Smt.Seethamma
also known as Nanjamma is defendant in O.S.No.112/2006.
Plaintiff-Smt.Gowramma in O.S.No.112/2006 is the defendant
No.1 in O.S.No.111/2006. Smt.Seethamma is paternal aunt of
Smt.Gowramma. Since parties intertwined, for clarity, the
Genealogy of the family as furnished by the plaintiffs/appellants
indicating rank of the parties is extracted hereunder:
– 10 –
CHIKKADEVAIAH
HONNAPPA LINGAPPA
Smt. Nanjamma(wife)
Devamma Seethamma @ Nanjamma (D7 in OS 112/06)
(W/o Kannappa) W/o Muniyappa) Pltf in OS 111/06 (old No.64/1996)
Dead by LRS
Chikkegowda Gangamma Hosarayppa Duggappa Sharadamma Suresh Lakshmamma (Dead)
Venkatesh Nagaraj
Akkamma Gowramma
(W/o Ramakrishnappa) (D2 in OS 111/06) (w/o Ramaiah)
D1 in OS 112/06 (Pltf in OS 112/06, D1 in OS 111/06)Rudramma Chinnaiah Papamma Lakshmma Amaresh
3. Subject matter of the above suits are the following
immovable properties:
1.Property bearing Sy.Nos.161/1 Measuring 3 acres 28 guntas
Sy.No.161/2 measuring 18 guntas, Sy.No.161/4 measuring
27 guntas, Sy.No.161/5 measuring 36 guntas, Sy.No.151/4
measuring 1 acre 1 gunta sy.no.152/2, measuring 30 guntas
all properties are situated at Indalabele Village, Attibele Hobli,
Anekal Tq, Bangalore Dist, Bounded on as follows:-
East by : Bada Dyaviaya’s land, & Kandyavaiah’s land,
west by : Harijanara Lakshmiaha’s land
North by : Shamaiah’s Kere & Lingappa’ Property,
South by : Land belongs to Smt. Eeramma,
2. Property bearing Sy.No.186/2, measuring 32 guntas,
situated at Indalabele Village, Attibele Hobli, Anekal Tq,
Bangalore Dist, Bounded onEast by : Hosabanna’s land,
west by : Pachappa’s property,
– 11 –
North by : Pachappa's property
South by : Lingappa's property,
3. Property bearing K.No.22, measuring East by west 30
feet and North to south 10 feet, situated at Indalabele village,
Attibele Hobli, Anekal Tq, Bangalore Dist, bounded on.
East by : Joojavadi Muniyappa's house,
West by : Nanjanna's House,
North by : Beedhi,
South by : Kariyappa's house,
4. Property bearing K.No.23/2, measuring 21 feet and north
to south 16 feet situated at Indalabele Village, Attibele hobli,
Anekal Tq, Bangalore Dist, bounded onEast by : Road leads to Kariayapp’s and Lingappa’s
house
West by : Jungavadi Muniyappa’s Vacant land
North by : –
South by : Lingappa’s house,
5. Property bearing K. No.25/3 measuring East to West 14 ft.
and North to South 10 feet, situated Indalabele village,
Attibele Hobli, Anekal Tq, Bangalore Dist, bounded on
East by : Kariyappa’s house
west by : Jungavadi Muniyappa’s Vacant land
North by : Lingappa’s Property.
South by : –
6. Property bearing K. No.25/4 measuring 54 ft. and North to
South 18 feet, situated Indalabele Village, Attibele hobli,
Anekal Tq, Bangalore Dist, bounded on
East by : U.L. Sharabanna’s Property,
west by : Dinne Muniyappa’s Property
North by : Govt. Kaluve
South by : Lingappa’s Property.
4. Case of the plaintiff in O.S.No.111/2006 is:
4.1 That one Chikkadevaiah had two sons namely
Honnappa and Lingappa. Honnappa and his wife
– 12 –
Smt.Nanjamma had two daughters namely Devamma and
Seethamma also known as Nanjamma who is the plaintiff in
O.S.No.111/2006. Devamma had two daughters namely
Akkamma and Gowramma-defendant No.1.
4.2. Akkamma was married to Ramakrishnappa-
defendant No.2. Smt.Akkamma and Sri.Ramakrishnappa-
defendant No.2 had five children namely Rudramma,
Chinnaiah, Papamma, Lakshmamma and Amaresh.
4.3 That after the demise of Chikkadevaiah, the kartha of
the family, his two sons Honnappa and Lingappa partitioned the
family properties in terms of which Honnappa acquired the suit
properties. Said Honnappa and his wife Nanjamma died
intestate leaving behind their daughters Devamma and
Seethamma @ Nanjamma-the plaintiff.
4.4 Devamma, the first daughter of Honnappa died
subsequently leaving behind her only two daughters namely
Akkamma and Gowramma- the defendant No.1. Akkamma, the
eldest daughter also died leaving behind her husband
Ramakrishnappa-defendant No.2 and their children.
– 13 –
4.5 That Honnappa was cultivating the suit properties
during his life time. Upon his demise, Seethamma- the plaintiff
was entitled for her share in the suit properties. During the
month of December, 1995 she learnt that her father-Honnappa
had executed a deed of gift in favour of Ramakrishnappa-
defendant No.2 and his wife-Akkamma.
4.6 That the suit properties are the ancestral properties.
That Honnappa, the father of the plaintiff was not having
authority under law to execute the deed of gift in favour of
defendant No.2 and his wife. Defendant No.2 did not derive any
right, title, interest over the suit properties based on the said
deed of gift. The said deed of gift is a fraudulent and a sham
document. Same is bad in law and cannot be acted upon and
the said document is not binding on the plaintiff and other legal
heirs of Honnappa. Plaintiff being entitled for half of the suit
properties filed the suit seeking following reliefs:
“(i)Directing that the Gift deed dated 13.06.1977, registered
as Document No.631/1977-78 pages 237, Book 1, Volume
1265, in the office of the Sub-Registrar, Anekal, is null and void
and the same cannot be enforced in law;
(ii) for partition and separate possession of the half share of the
plaintiff in the suit schedule property/ies;
(iii) to grant the plaintiff such other relief/s as the Hon’ble Court
deems fit to grant in the circumstances of the case;
(iv) to award the plaintiff the costs of this suit in the interest of
justice and equity.”
– 14 –
4.7 Written statement is filed by Ramakrishnappa-
defendant No.2, contending that suit is barred by limitation.
The suit properties are not the ancestral properties. Therefore
the plaintiff cannot claim share therein. Honnappa, the
grandfather of Gowramma-defendant No.1 and Smt.Akkama,
wife of defendant No.2 did not die intestate as contended by
the plaintiff. Admittedly deed of gift dated 13.06.1977 was
executed and registered in the office of Sub-Registrar, Anekal,
Bangalore District, by late Honnappa in favour of defendant
No.2 and his wife conveying the suit properties. That the suit
properties are the absolute properties of Honnappa and are not
the ancestral properties as claimed by the plaintiff. Even
assuming the suit properties are ancestral properties,
Honnappa, being the absolute owner during his lifetime had
executed the deed of gift dated 13.06.1977 pursuant to which
defendant No.2 and his wife-Akkamma had been in possession
and enjoying the same.
4.8 The plaintiff is aware of the execution of the deed of
gift executed by Honnappa in favour of the defendant No.2 and
his wife as she used visit their house frequently. She having
slept over the matter for over 18 years cannot now invoke the
– 15 –
jurisdiction of the Court. That there is no cause of action to the
suit. Hence, sought for dismissal of the suit.
4.9 Based on the pleadings, trial Court framed the
following issues:
“1. Whether the plaintiff proves that the suit schedule properties
are ancestral joint family properties?
2. Whether the plaintiff proves that deceased Honnappa had no
absolute right to gift the suit properties to 2nd defendant and his
wife Smt.Akkamma?
3. Whether the 2nd defendant proves that the suit properties are
self acquired property of deceased Honnappa?
4. Whether the 2nd defendant proves that he has acquired valid
title to the suit properties by virtue of gift deed dated
13.06.1977.
5. Whether the defendant No.2 proves that the suit of plaintiff is
barred by time?
6. Whether gift deed executed by the deceased Honnappa is
binding on the plaintiff’s share?
7. Whether the plaintiff is entitled to the partition in the suit
properties?
8. Whether the plaintiffs are entitled to decree prayed for?
9. What decree or order?”
5. Suit in O.S.No.112/2006 is filed by Gowramma- the
second daughter of Devamma and granddaughter of Honnappa
contending that:
5.1 That one Honnappa had two daughters by name
Deviramma and Nanjamma @ Seethamma. Deviramma died
leaving behind her two daughters Akkamma and Gowramma-
– 16 –
the plaintiff. Akkamma died leaving behind her husband-
Ramakrishnaiah-defendant No.1 and their children defendants
2 to 6. Suit Properties are the ancestral properties. Honnappa,
was the kartha of the family. His daughter Nanjamma @
Seethamma was given in marriage to one Muniyappa of Kodur
village. Deviramma was given in marriage to one Kannappa.
Honnappa stayed with Deviramma and her family who looked
after him till his demise. After his demise Deviramma was
managing the affairs of the family. After the demise of
Deviramma, Akkamma and Gowramma- the plaintiff were
jointly cultivating the suit properties both having respective
shares. There is no division in the family properties.
5.2 Since there was misuse in the affairs of the joint
family properties, Gowramma- the plaintiff demanded her share
which was refused. In the year 1995 she learnt that her sister
Akkamma and her husband Ramakrishnaiah-defendant No.1
had obtained deed of gift dated 13.06.1977 by playing fraud on
Honnappa and the said deed of gift is not binding. Hence, the
suit seeking following reliefs:
a) For partition and separate allotment of the Half share of the
plaintiff, in the suit schedule properties, and the Gift deed dated
13.06.1977 is not binding on the plaintiff and the same is null
and void.
– 17 –
b) For an enquiry into mesne profits from the date of the suit
till recovery of the plaintiff’s share in the suit schedule
properties.
c) For awarding the costs of the suit.
d) And for such other relief or reliefs as this Hon’ble Court
deems fit to be grant under the circumstances of the case, in
the interest of justice and equity.”
5.3 Written statement to the said suit has been filed by
defendants 1 to 6 contending that the suit properties are the
self acquired properties of Honnappa. Said Honnappa was
neglected by other family members including his daughters
Devamma and Nanjamma. It was defendant No.1 and his wife
Akkamma who looked after said Honnappa till his demise. That
said Honnappa had initially executed a Will dated 16.10.1967
later he executed deed of gift dated 13.06.1977 in favour of
defendant No.1 and his wife Akkamma, who since then have
become absolute owners of the suit properties. Honnappa
passed away in the year 1978. His daughters Devamma and
Seethamma had demanded share in the suit properties. A
Panchayat was called before the elders of the village.
Defendant No.1 had substantiated his claim over the suit
properties on the basis of deed of gift dated 13.06.1977 after
which they went away and did not return to the village.
– 18 –
5.4 Present suit is filed in collusion with Seethamma who
has already filed a suit in O.S.No.64/1996 renumbered as
111/2006. The suit of the plaintiff is barred by limitation.
Hence, sought for dismissal of the suit.
5.5 Based on the aforesaid pleadings, trial Court framed
following issues:
1. Whether the plaintiff proves that the suit properties are
joint family properties of herself and defendants?
2. Whether the plaintiff proves that she has got half share
in the suit schedule properties?
3. Whether the plaintiff proves that gift deed dated
13.06.1997 is null and void and not binding on her?
4. Whether D1 to 6 prove that late Honnappa transferred
the suit schedule properties by executing registered gift
deed dated 17.06.1977 and the first defendant along with
his wife have become the absolute owners of the suit
properties and were in exclusive possession of the same?
5. Whether the D1 to 6 prove that the suit of the plaintiff
is barred by time?
6. Whether the defendants No.1 to 6 prove that valuation
of suit schedule properties made and court fee paid by the
plaintiff is not correct?
7. Whether the L.R’s of defendant No.7 prove that they
are entitled to partition and their 1/2 share in the suit
schedule properties?
8. What order or decree?”
6. Common evidence was recorded before the trial Court
in both the suits. One Chikkegowda-son of Seethamma-the
plaintiff in O.S.No.111/2006 has been examined as PW1. 26
– 19 –
documents have been exhibited and marked as Ex.P1 to
Ex.P26. Ramakrishnappa-defendant No.1 and Gowramma-
defendant No.2 have examined themselves as DW1 and DW2
respectively and 48 documents have been exhibited and
marked as Exhibits D1 to D48.
7. On appreciation of the evidence, the trial Court
answered the issues framed in O.S.No.111/2006 as under:
Issue No. 1 partly in the affirmative.
Issue Nos.2, 7 and 8 in the negative.
Issue Nos.3, 4, 5 and 6 in the affirmative and
consequently dismissed the suit.
and answered issues framed in O.S.No.112/2006 as under:
Issue Nos.1, 2, 3 and 7 in the negative.
Issue Nos.4, 5 and 6 in the affirmative.
8. Being aggrieved legal representatives of plaintiff-
Seethamma @ Nanjamma in O.S.No.111/2006 (Old
O.S.No.64/1996) are before this Court in RFA No.2274/2006.
9. Gowramma, plaintiff in O.S.No.112/2006 (old
O.S.No.71/1996) had preferred regular appeal in
R.A.No.39/2007 on the file of District Judge, Bengaluru Rural
– 20 –
District. The said matter has been transferred before this Court
and renumbered as RFA No.1833/2019.
10. Sri.K.Shrihari, learned counsel appearing for the
plaintiffs in O.S.No.111/2006 and Sri. M.T.Jagan Mohan,
learned counsel appearing for plaintiff in O.S.No.112/2006,
taking this Court through the records submitted:
(a) That the execution of the deed of gift by
Honnappa did not create any right, title and interest
in favour of defendant No.2 and his wife-Akkamma
as the said document was obtained by playing fraud
on him, as such the said document is not binding on
the plaintiffs.
(b) Referring to paragraph 4 of the plaint in
O.S.No.111/2006 it is submitted that there is no
denial of the averments made in the plaint
regarding the document being obtained fraudulently
by the defendant No.2, as such the element of fraud
has to be inferred as having been admitted by the
defendants vitiating the entire transaction. In
support of this contention, learned counsel relies
upon the Judgment of the Apex Court in the case of
Badat and Co. Bombay Vs East India Trading
Company reported in 1963 SCC Online SC 9, in
the case of Rosammal Issetheenammal,
Fernandez(dead)by Lrs and others Vs Joosa,
Mariyan Fernandez and others reported in
(2000) 7 SCC 189. Referring to paragraph 7 and
– 21 –
11 respectively of the aforesaid judgments, he
submitted if the fact is not specifically denied it is
deemed to have been admitted.
(c) He further submitted since the plaintiff has
specifically contended the document deed of gift
was obtained by fraudulent means, the burden of
proving the validity or otherwise of the document
shifts on the defendants 1 and 2. That since the
document is a deed of gift same is required to be
proved in the manner provided under Section 68 of
Indian Evidence Act, the defendants 1 and 2 have
not discharged the said burden. They have not
even examined the attesting witness to the said
document. Therefore, he contended that the
document has not been proved in the manner
known to law. In this regard he relies upon the
Judgment of the Apex Court in the case of
K.Laxmanan Vs Thekkayil Padmini and others
reported in (2009)1 SCC 354. Referring to
paragraph 30 of the said Judgment he contended
that where the legality and validity of the deed is
under challenge, the proviso to Section 68 of the
Indian Evidence Act does not become operative and
functional.
(d) Thus, he submitted that on both the counts of
admission as well as document not having proved in
the manner known to law, the trial Court erred in
dismissing the suits.
– 22 –
(e) That the deed of gift having been executed by
Honnappa in favour of his son-in-law, the stamp
duty ought to have been paid as of a normal
conveyance as the `son-in-law’ would not fall within
the definition of `family’. He submits the document
insufficiently stamped is inadmissible in law.
Therefore, even on that count, the suit is required
to be decreed.
11. Per contra, Sri Rajshekhar, learned counsel for the
defendants on the other hand, justifying the judgment passed
by the trial Court submitted:
(a) That the suit properties are the absolute
properties of Honnappa and he had every right to
deal with the same as he deemed appropriate. The
suit properties not being the ancestral joint Hindu
family properties, the plaintiffs did not derive any
share right or interest over the same.
(b) That the defendant in the written statement has
specifically denied the averments made at para 4 of
the plaint as seen at paragraph 2 of the written
statement. Therefore, he submits the contention of
admission of the averment is untenable.
(c) As regards requirement of proof of deed of gift by
examining witness under Section 68 of Indian
Evidence Act, he submitted that the deed of gift has
been executed as far back as in the year 1977. The
suit has been filed after 18 long years. When the
– 23 –
plaintiff herself admits execution of the document,
the plaintiff cannot contend that the document has
not been proved in the manner known to law.
(d) As regards the contention regarding non
payment of the stamp duty, he relies upon the
judgment of Apex Court in the case of Javer Chand
and others Vs Pukhraj Surana reported in 1961
SCC Online SC 22. Referring to paragraph 4 of the
said judgment, he submitted when an instrument
has been admitted in evidence such admission shall
not, except provided in Section 61 be called in
question at any stage of the said suit or the
proceedings on the ground of said instrument not
having been duly stamped. That the present
instrument deed of gift was produced during the
evidence, same has been marked without any
objection from the plaintiff, relied upon by both the
parties and only in the appeal stage the plaintiff has
raised the issue. Therefore, the same cannot be
countenanced. He also relied upon the Judgments in
the case of K.Amarnath Vs Smt.Puttamma -ILR
1999 Kar 4634, K.Anjaneya Setty Vs
K.H.Rangaiah Setty -ILR 2002 Kar 3613 and
Krishna Vs Sanjeev -ILR 2002 Kar 3613 in
support of his submissions.
Hence, seeks for dismissal of the appeals.
12. Heard and perused the records.
– 24 –
13. Learned counsel for plaintiffs/appellants has fairly
submitted that the plaintiffs would not insist upon the ground
regarding suit properties to be the ancestral joint Hindu family
properties. However, the plaintiffs/appellants would restrict
these appeals only to the extent of validity or otherwise of the
deed of gift.
14. The only point therefore that arises for consideration
is:
“Whether the execution of deed of gift dated
13.06.1977 by Honnappa in favour of
Ramakrishnappa and wife Akkamma is valid and
subsisting?”
15. Learned counsel for the plaintiffs/appellants referred
to paragraph 4 of the plaint in O.S.No.111/2006 to contend
that the averments and allegations made therein have not
been specifically denied by Ramakrishnappa-defendant as such
same amounts to admission.
16. The plaintiff in O.S.No.111/2006 at paragraph 4 has
averred as under:
“The plaintiff immediately approached the concerned revenue
authorities and on verification, came to know that father-
Honnappa had said to have executed a gift deed (dana patra) in
favour of 2nd defendant and wife without having any manner of
right and without knowledge of the plaintiffs, with an intention
to deceive the legitimate right of the plaintiff, in respect of suit
schedule properties. The suit schedule properties are ancestral
– 25 –
properties of Honnappa, the father of plaintiffs herein. The said
Honnappa was not having authority of law to execute a gift
deed in favour of 2nd defendant and his wife. The 2nd defendant
shall not derive any right over the said property on the basis of
the said gift deed. The said document is a fraudulent and sham
document and the same is bad in law, and cannot be acted
upon and the said document is not binding on the plaintiff and
other L.rs of late Honnappa.”
17. Though it is contended that there is no denial to the
averments made in paragraph 4 of the plaint, appropriate to
refer to the averments made in paragraphs 2, 3, 4 and 5 of the
written statement which is as under:
“2. The contention of the plaintiff that Sri Honnappa died
intestate does not stand to be test of law and is devoid of
merit and truth and hence the same is hereby denied by
this defendant. Moreover, the said contention contradicts
the plaintiff’s own statement pleadings at para 4 vis.,
“Honnappa is said to have executed the gift deed
(Danapatra) in favour of the 2nd defendant and his
wife”……”. It is admitted fact by the plaintiff herself that
the gift deed aforesaid was executed in accordance with
law by late Honnappa in favour of the 2nd defendant and
his deceased wife, Smt.Akkama. This is inconsistent and
repugnant stand taken by the plaintiff speak for
themselves that the claim of the plaintiff in so far as the
schedule properties are concerned cannot be sustained in
the eye of law.
3. Here again, the plaintiff never adduced an iota of
evidence in support of her case that the scheduled
properties are ancestral is far from the truth. In fact and
reality, the schedule properties are self-acquired
properties of the late Shri.Honnappa.
4. Assuming but not needing the schedule properties are
said to be the ancestral properties as averred by the
plaintiff, nevertheless, it was late Shri.Honnappa who had
become absolute owner of the schedule properties when
he was alive since the plaintiff ceased to have any manner
of right, title or interest in the schedule properties for
having she got married and settled down with her
husband. Moreso, the plaintiff had/has no right under the
– 26 –
law to claim share in the coparceners property when her
father was alive.
5. In the given case, late Shri.Honnappa had admittedly
conveyed the schedule properties as gift in favour of 2nd
defendant and his wife late Akkamma, in terms of the
above said registered gift deed when he was alive by
exercising his absolute right of ownership under the law.
That being so, the plaintiff’s claim to the scheduled
properties are the ancestral properties and she has right of
inheritance thereof does not and shall not arise.”
18. The contents of the aforesaid paragraphs in the
written statement indicate that defendant No.2 apart from
specifically denying the averments and allegations made by the
plaintiff at paragraph 4 of the plaint, has also further
specifically pleaded with regard to the absolute right and
entitlement of Honnappa to execute the deed of gift.
19. In view of the averments made in paragraphs 2, 3, 4
and 5 of the written statement the contention of the learned
counsel for the plaintiff/appellants, that there is no denial by
the defendants to the averments made in paragraph 4 of the
plaint cannot be accepted. Reliance place on by learned counsel
for the appellants to the Judgments of the Apex Court in the
case of Badat and company and Rosammal
Issetheenmmal supra is of no avail. On other hand the said
Judgments support the case of the defendants.
– 27 –
20. On the point of shifting of burden of proof under
Section 68 of the Indian Evidence Act submission of learned
counsel for the appellants cannot be accepted.
21. Section 68 of the Evidence Act reads as under:
“68. Proof of execution of document required by law to be attested.–If a
document is required by law to be attested, it shall not be used as
evidence until one attesting witness atleast has been called for the
purpose of proving its execution, if there be an attesting witness alive,
and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness
in proof of the execution of any document, not being a will, which has
been registered in accordance with the provisions of the Indian
Registration Act, 1908 (16 of 1908), unless its execution by the person by
whom it purports to have been executed is specifically denied.”
22. The plaintiff at paragraph 4 of the plaint as noted
above has not specifically denied the execution of deed of gift
but has only questioned the right of Honnappa to execute such
document. It is further contended that Honnappa executed the
deed of gift in favour of defendant No.2 and his wife without
knowledge of the plaintiff and with an intention to deceive her
legitimate right in the suit properties. Thus, there is no specific
denial of the execution of deed of gift.
23. Further except stating that “the said document is a
fraudulent and sham document and same is bad in law and
cannot be acted upon…..” no particulars of fraud are pleaded.
– 28 –
24. It is necessary at this juncture also to refer to
provisions of Order VI Rule 4 CPC, which require plaintiff
providing better particulars in respect of the allegations with
regard to misrepresentation, undue influence, coercion and
fraud, nothing is pleaded by the plaintiff. The said provision
reads as under:
4. Particulars to be given where necessary.–In all cases
in which the party pleading relies on any misrepresentation,
fraud, breach of trust, wilful default, or undue influence, and in
all other cases in which particulars may be necessary beyond
such as are exemplified in the forms aforesaid, particulars
(with dates and items if necessary) shall be stated in the
pleading.”
25. Perusal of paragraph 4 of the plaint in
O.S.No.111/2006 which is verbatim produced even in plaint in
O.S.No.112/2006 indicate that no particulars are given in
justification of the claim of deed of gift being fraudulent and
sham document. In other words no details are forthcoming as
to how, who and when the fraud was perpetrated. These are
the essential elementary particulars of pleadings which required
to have been provided by the plaintiffs. Since the plaintiffs
have sought for a declaratory relief to declare the execution of
the deed of gift dated 13.06.1977 to be null and void and not
being enforceable, as the same was allegedly obtained by
fraudulent means, the burden was on the plaintiffs to have
– 29 –
specifically pleaded and proved the matter sufficient enough to
set aside the deed of gift.
26. In the grounds of the appeal for the first time it is
sought to be urged that Honnappa was under the mercy of
defendant No.2. There was undue influence and coercion. He
was not in sound state of mind. He was suffering from Senile
Dementia resulting in memory loss. No such pleading are
forthcoming in both the plaints.
27. Thus in the absence of specific pleading with regard
to allegation of fraud and proof regarding the same, the initial
burden not having been discharged by the plaintiffs, the same
cannot be shifted on the defendants.
28. Reliance placed on by learned counsel for the
appellants to the judgment of Apex Court in the case of
K.Laxmanan supra is of no avail. The facts involved in the
said case are that, in a suit filed by the plaintiff therein for
partition the defendant therein had set up and propounded the
Gift and Will. It is under those circumstances, the Apex Court
found that suspicious circumstances regarding execution of the
documents was to be dispelled by the propounder and the
onus was on the propounder to explain the same to the
satisfaction the Court and only when such burden was
– 30 –
discharged the Court would accept the Will to be genuine. The
Apex Court at paragraph 30 of the said judgment found
legality or validity of the deed of gift was under challenge in
the trial Court for which the parties had led their evidence.
Therefore, in the said case, proviso to Section 68 of the Indian
Evidence Act did not become operative and functional.
29. In the instant case as found at paragraph 4 there is
no dispute that the document gift deed was indeed executed by
Honnappa. Thus there is no specific denial as contemplated
under proviso to Section 68 of the Indian Evidence Act as
extracted hereinabove. The only averment made by the
plaintiff is that the said document was obtained by defendant by
fraudulent means without giving any particulars as required
under law. In the absence of specific denial to the execution of
deed of gift, there is no burden on the defendants to prove
execution of deed of gift as required thereunder.
30. Trial Court has adverted to this factual and legal
aspect of the matter at paragraphs 24 and 25 of its Judgment.
31. As regards the other contention of document not
being sufficiently stamped and being inadmissible and that
defendant No.2 being son-in-law do not fall within the meaning
– 31 –
of family for exemption of payment of stamp duty etc., it is
necessary to note that such a plea is raised for the first time
during arguments. No details as to stamp duty that is required
to be paid or deficit payment of stamp duty if any is brought on
record. The deed of gift is dated 13.06.1977. The same has
been produced, marked and exhibited as Exhibit D1. Perusal of
Exhibit D1 indicate that stamp duty of Rs.530/- has been paid
and additional stamp duty of Rs.190/- being deficit stamp duty
is paid.
32. It is necessary to note that the Apex Court in the case
of M/s.N.N.Global Mercantile Private Limited Vs M/s.Indo
Unique Flame Limited and others reported in (2023) 7 SCC
1 has held that though a document can be admitted in
evidence it cannot be acted upon if it is not duly stamped.
33. In the instant case nothing is brought on record to
indicate that the stamp duty paid was insufficient. It is also not
stated as to what is the stamp duty that is required to be paid,
in the year 1977. Necessary to note Article 28 of Karnataka
Stamp Act, 1957 providing for payment of stamp duty of
instrument of Gift was amended on 01.04.2001 and on
01.04.2016 giving concession on payment of stamp duty where
the donee is member of the family of the donor.
– 32 –
34. Learned counsel for appellants relied upon the
Judgment of the Apex Court in the case of Javer Chand supra
wherein at paragraph 4 it has been held as under:
“……….Once a document had been marked as an exhibit in the
case and the trial has proceeded along on the footing that the
document was an exhibit in the case and has been used by the
parties in examination and cross examination of their
witnesses, Section 36 of the Stamp Act comes into operation.
Once a document has been admitted in evidence, as aforesaid
it is not open either to trial Court itself or to a Court of appeal
or revision to go behind that order. Such an order is not one
of those judicial orders which are liable to be reviewed or
revised by the same Court or a Court of superior jurisdiction.”
35. Similar is the view taken by this Court in the case of
Amarnath Vs Smt.Puttamma reported in ILR 1999 Kar
4634 wherein it is held that “once Court admits a
document even wrongly, such admission becomes final
and cannot be reopened.”
36. Thus, in the absence of plaintiffs/appellants making
out a prima facie case of document being incapable of being
acted upon for want of payment of sufficient stamp duty in the
light of the Judgment relied upon by the learned counsel for
respondents, this Court is not persuaded by the submission
made by learned counsel for appellants regarding
inadmissibility of the document at Ex.D1. Point raised above is
answered accordingly.
– 33 –
For the aforesaid reasons and analysis, appeals are
dismissed. Judgment and decree dated 29.09.2006 passed by
the trial Court in O.S.No.111/2006 and O.S.No.112/2006 is
confirmed.
SD/-
(M.G.S. KAMAL)
JUDGE
SBN
