Bangalore District Court
Chitra Inchalmath Alias P Chitra Devi vs Niranjan Shankar P on 17 April, 2026
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O.S.No.4928/2020
KABC010178272020
IN THE COURT OF THE XIV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, AT BENGALURU (CCH-28)
Present : Smt. A.M. NALINI KUMARI, B.A.L, LL.M, PGD in IR & PM,
XIV Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 17th day of April, 2026
O.S.No.4928/2020
Plaintiff: CHITHRA INCHALMATH @
P. CHITRA DEVI,
Aged 52 years,
W/o. Veeresh Inchalmath,
D/o. late K.Prabhakar,
R/at No.7-A, OPP. Chadha
1.T.I. School, Near Rajajinagar,
Gurudevanagar,
Hubli Town -580032,
Dharwad District.
(By Sri. R.S.H. Advocate)
-Vs.
Defendants: 1. P. NIRANJAN.SHANKAR,
Aged 53 years,
S / O late K. Prabhakar,
R/at No.35/4, 30th 'A' Cross,
8th Cross, Jayanagar,
Bengaluru-560070.
2. P. UMASHANKAR,
Aged 59 years,
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O.S.No.4928/2020
S/o. late K. Prabhakar
R/at No.377, 42nd Cross,
Jayanagar,
Bengaluru-560082.
3. NITHYA SHANIKAR. P,
Aged 49 years,
S/o. late K. Prabhakar,
R/at No.523, 1 Main, 2nd Cross,
AGS layout, Subaramanyapura,
Bengaluru South,
Bengaluru-560061.
4. P. RAVISHANKAR,
Aged 64 years,
S/o. late K. Prabhakar,
R/at "Vasundhara", No.70,
Upstairs, 10th Main,
4th Cross, Binny Layout,
2nd Stage, Vijayanagar,
Bengaluru-560040.
5. P. SHYLAJA,
Aged 65 years,
W/o. Shankarappa,
D/o. late K. Prabhakar,
R/at 1380/1, 1st Floor,
No.2, Srikanth Residency,
9th Main Road, Srinivasanagar,
Bengaluru-560050.
6. L.S. Vishnu Kiran,
Aged 51 Years,
S/o. Late L.N. Simha,
7. Vidya Vishnu Kiran,
Aged 49 Years,
W/o. L.S. Vishnu Kiran
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O.S.No.4928/2020
Both R/at No.294, Shanthiniketan,
Apt 201, 39th Cross, 8th Block,
Jayanagar,
Bengaluru-560070.
8. N.Jayashree Ranka,
Aged 46 Years,
W/o. K.M. Naveen Kumar Ranka.
9. K.M.Naveen Kumar Ranka,
Aged 48 years,
S/o. Late K. Mothilal Ranka,
Both are R/at No.51, First Floor,
East Anjaneya Temple Street,
Basavanagudi,
Bengaluru-560004.
10. Sridhar M.K.
Aged 72 years,
S/o Late Krishna Murthy,
R/at Flat No.302, Block-1,
Jain Prakrithi Apartment,
7th Block, Jayanagar,
Kanakapura Road,
Bangalore-560 070.
D1 & D5 : By Sri. M.R./B.B.
D2 : By Sri. S.T.S.
D3 : By Sri. A.F.
D6 & D7 : Sri. V.A.M.
D8, 9 & 10 : Sri. B.B. Advocates
D4 : Ex-parte.
Date of Institution of the suit 12.10.2020
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Partition & Separate
Nature of the suit
Possession
Date of the commencement 06.07.2024
of recording of the Evidence.
Date on which the judgment
17.04.2026
is pronounced.
Year/s Month/s Days
Total duration 05 06 05
JUDGMENT
1. The Plaintiff has maintained the present suit for the relief
of Partition & Separate Possession to an extent of 1/6th share in
the Suit Schedule Property and also to declare that the Gift
Deed dated 27.08.2010 is not binding on the Plaintiff to an
extent of 1/6th share and also to direct the Defendant to pay
mesne profits.
2. The brief facts of the case of the Plaintiff is that, the
Defendants are her brothers and sisters, Plaintiff and
Defendants are the legal heirs and successors of K. Prabhakar,
who is said to have demised on 01.10.1978 and Smt. Sharada
Devi @ Smt. Nirmala Devi is the mother of Plaintiff and
Defendants herein and she is said to have demised on
17.07.2012. And that the Plaintiff and the Defendants are the
sole surviving Class-I legal heirs of their father and mother. And
that K. Prabhakar during his lifetime had applied for allotment of
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residential site in the City Improvement Trust Board vide
application dated 19.05.1958 and that the Plaintiff’s father was a
teacher by profession and out of his own earnings he had paid
the full sital value and that the erstwhile CITB Bengaluru issued
endorsement dated 15.07.1958 and a memo dated 19.07.1958
in respect of the Suit Schedule Property. And that the Plaintiff’s
father K. Prabhakar was in possession of the Suit Schedule
Property and that he demised on 01.10.1978.
3. It is also the case of the Plaintiff that a small house was
constructed on the Suit Schedule Property and since the said K.
Prabhakar was demised on 01.10.1978, the Sale Deed after the
lease period came to an end, the BDA executed a Sale Deed in
favour of their mother Smt. Nirmala Devi @ Sarada Devi vide
registered Sale Deed dated 11.04.1980. And that the Suit
Schedule Properties were jointly enjoyed by the Plaintiff and the
Defendants herein. And on 17.04.2012 the mother of the
Plaintiff and the Defendants is said to have demised and that
during her lifetime, she was maintaining the Suit Schedule
Property. And that Plaintiff came to know that Defendant No. 2
noticed that the Defendant No. 1 during the first week of
November 2018 had made arrangements for starting
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construction over the suit property and Defendant No. 1 for the
first time proclaimed to the Defendant No. 2 that he is the sole
and absolute owner of the Suit Schedule Property. When the
Defendant No. 2 enquired about the same, the first Defendant ill
treated and misbehaved with the second Defendant and
thereafter the Plaintiff came to know of the fact that Defendant
No. 1 has obtained the building plan and license from BBMP to
demolish the old house and to put up the construction of a new
house and later on came to know that the Defendant No. 1 has
obtained a registered Gift Deed from their mother way back on
27.10.2010 and during her lifetime a suit in O.S.No. 1430/2019
on 21.02.2019 was filed seeking for partition and separate
possession to an extent of 1/5th share. And the Plaintiff herein
was arrayed as Defendant No. 4 in the said case. And that said
Sharada Devi @ Nirmala Devi died on 17.07.2012. And that the
Plaintiff has demanded her 1/6th share in the Suit Schedule
Property during the pendency of the said suit and that Defendant
No.4 is said to have filed written statement and a counter claim,
whereby the said suit came to be closed, i.e. in O.S.No.
1430/2019, without giving an opportunity to the Plaintiff and with
ulterior motive the 2nd Defendant who was Plaintiff in
O.S.No.1430/2019 has abandoned the said proceedings. And
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thereby the Plaintiff claims that Suit Schedule Property is the
self-acquired property of the father of the Plaintiff and the
Defendants and on their demise the same is jointly succeeded,
owned, possessed and enjoyed by the Plaintiff and Defendants
herein. And therefore, on these and other grounds the Plaintiff
has sought for 1/6th share in the Suit Schedule Property and
consequentially to declare the Gift Deed dated 27.08.2010 as
not binding on the Plaintiff’s share.
4. The Defendant No.1 has filed written statement
contending that the suit is not maintainable as the same is hit by
the principles of the estoppel and secondly on the ground that
the suit is barred by limitation and that the Gift Deed is executed
by the mother in favour of Defendant No.1 as on 27.08.2010 and
after the lapse of 11 years the Plaintiff has challenged the said
Gift Deed. And the Plaintiff being the elder sister of Defendant
No. 1 had full knowledge of the proceedings before the BDA.
And that the fact that Sarada Devi Prabhakar became the
absolute owner in respect of the Suit Schedule Property and that
during the lifetime of Smt. Sarada Devi, she had availed the loan
of ₹11,00,000 from Charan Co-operative Bank, Bengaluru and
she did not have any means to clear the said loan and that at
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the request of his mother, this Defendant without hesitation is
said to have cleared the said loan and also assisted his mother
in closure of the loan account. And Defendant No.3, C. Nithya
Shankar, is said to have subscribed her signature as witness
No.1 to the said closure of loan account. And by virtue of Gift
Deed dated 27.08.2010, the Defendant No. 1 is said to have
become the absolute owner and is in possession and enjoyment
of the Suit Schedule Property. And that the said P Umashankar
who had the knowledge about the above transaction is said to
have filed a suit in 1430/2019 for partition and separate
possession and when this Defendant had commenced
construction by demolishing the old house and had availed the
loan of ₹ 98,00,000 by pledging the said documents from Andhra
Bank and had put up the construction of the present building and
these facts are within the knowledge of the other Defendants.
And that this Plaintiff though was one of the Defendants in the
said case, the moment one of Plaintiffs abandoned the suit
should have transposed herself and should have contested the
said case and once the suit is dismissed based upon the same
grounds, seeking similar relief, the Plaintiff has come out with
the present suit, based upon the principles of estoppel the
Plaintiff is estopped to seek for similar relief. Hence, on these
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and other grounds the Defendant No.1 has sought for dismissal
of the above suit.
5. The Defendant No.10 has also filed written statement,
whereby Defendant No.10 has contended that the 10th
Defendant is not necessary to the case in hand, since the suit is
for Partition & Separate Possession. He has further contended
that the Plaintiff has filed the suit for Partition & Separate
Possession in respect of the property belonging to her mother
and that the said mother is said to have gifted the property in
favour of the Defendant No. 1 and Defendant No. 1 has invested
huge amount and has constructed 6 flat apartments. And that
the Plaintiff cannot seek for partition to an extent of 1/6th share
in the said property and that Plaintiff has nothing to do or her
alleged right of 1/6th share in the suit schedule property is
untouched, even if it is presumed for the sake of argument that
the 10th Defendant has purchased her undivided 1/6th share, the
purchase is subject to Section 52 of the Transfer of Property Act.
And that the 1st Defendant had obtained the vacant site by way
of gift measuring 40×60 from his mother, which is not partible,
since the Defendant No.1 has put up a construction in the said
property to the tune of 6 apartments Hence, on these and other
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grounds the Defendant No.10 has sought for dismissal of the
above suit.
6. Based upon the above pleadings of the parties, following
Issues & Additional Issues are framed :-
ISSUES
1. Whether the Plaintiff proves that she along with
Defendants has jointly succeeded to the suit Property after
demise of her parents?
2. Whether the Plaintiff proves that she is entitled for
1/6th share in the suit Property?
3. Whether the Defendant No.1 proves that he is
absolute owner of the Suit Schedule Property by virtue of
Gift Deed dated 27.08.2010 executed by deceased
Sharada Devi?
4. Whether the Plaintiff is entitled for the relief sought
in the suit?
5. What order or decree?
ADDITIONAL ISSUES
1. Whether the Plaintiff proves that Defendant No.1
pendente lite alienated the flat bearing No.SF 1 and two
other flats of Sharada Elite in favour of Defendants No.6 to
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10 by virtue of 3 Sale Deeds?
2. Whether the Plaintiff makes out a case that the Sale
Deeds dated 07.10.2021, 15.07.019 and 05.05.2022
executed in favour of Defendants No.6 to 10 by Defendant
No.1 are not binding upon the Plaintiffs share?
3. Whether the Defendants No.6 to 10 proves that they
are bonafide purchasers of the above flats?
7. The Plaintiff in order to substantiate the Plaintiff’s claim
has examined herself as PW.1 and got marked Ex.P1 to P20
and C1 to C4. Defendant has also examined himself as DW1.
and got marked Ex.D1 to D18.
8. The Learned Counsel for the Plaintiff has submitted
written arguments. Perused the same.
9. Heard the Learned Counsel for the Defendant. The
Learned Counsel for the Defendant has also relied upon 10
citations. Perused the same.
10. My findings to the above Issues are as under:
Issue No.1 .. In the Negative
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Issue No.3 .. In the Affirmative
Issue No.4 .. In the Negative
Additional Issue No.1 .. In the Affirmative
Additional Issue No.2 .. In the Negative
Additional Issue No.3 .. In the Affirmative
Issue No.5 .. As per final order, for the following:
REASONS
11. Issue No.1 & Issue No.3 :- Issue No.1 is casted upon the
Plaintiff to prove that she along with Defendants has jointly
succeeded to the suit Property after demise of her parents and
Issue No.3 is casted upon the Defendant No.1 to prove that he
is absolute owner of the Suit Schedule Property by virtue of Gift
Deed dated 27.08.2010 executed by deceased Smt. Sharada
Devi. The Plaintiff by reiterating the plaint averments has
examined herself as P.W.1 and got marked Ex.P1 to P20
documents. Before discussing the ocular evidence, it is
necessary to look to the documentary evidence placed on
record.
12. Ex.P1 is the Certified copy of the Sale Deed dated
16.06.1980. Ex.P1(a) is the typed copy of the said Sale Deed
which reads as under :-
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“First party being Smt. Nirmala Devi @ Sharada Devi
Prabhakar, wife of late K. Prabhakar and the said sale
deed is executed by BDA”
13. The recitals of the said document goes to read as under :-
“The schedule property was allotted to K. Prabhakar, who
has paid the full value of the schedule site i.e. ₹ 1,734 and
executed a Bond thereof. The said site has been
transferred from the name of K. Prabhakar to the name of
Smt. Nirmala Devi @ Sharada Devi Prabhakar as per the
order of Chairman dated 12.02.1962. And whereas the
Executive Engineer of Bangalore Development Authority
has registered the possession of the site to the purchaser
registered as Document No. 408, Book No.1, 70/38 pages
50 dated 22.04.1963 in the Sub Registrar’s Office,
Bangalore City, And the schedule is the Site No. 35/4
situated at Jayanagar Extension, measuring East to West
40 feet, North to South 60 feet.”
14. Ex.P2 is the Order sheet & plaint in O.S.No.1430/2019
filed by one Uma Shankar as against Niranjan Shankar, Nitya
Shankar, Ravi Shankar, Chitra Devi and Shailaja. Whereby the
cause of action to the said suit is reflected to have arisen in the
first week of November 2018 when Defendant No. 1 started to
put up the construction on the schedule property. Wherein this
Plaintiff is reflected in the cause title as Defendant No. 4 by
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name Smt. P. Chitra Devi, wife of Veeresh Inchalamath.
15. Ex.P3 is the Gift Deed dated 27.08.2010 executed by Smt.
Sharda Devi Prabhakar, formerly known as Nirmala Devi, wife of
late K. Prabhakar, in favour of P. Niranjan Shankar. The
witnesses to the said document are Ravi Shankar and Nitya
Shankar. Ex.P4 is the notarized Affidavit sworn by the Plaintiff in
respect of the Family tree, whereby K. Prabhakar is reflected as
demised, so also his wife Sarada Devi and they having children
namely Shailaja P. 70 years, Ravishankar 68 years, Chitra
Inchalamath 64 years, Uma Shankar 63 years, Nitya Shankar 51
years and Niranjan Shankar 58 years.
16. Ex.P5 is the letter issued by CITB, Bengaluru in the name
of K. Prabhakar. Ex.P6 is the endorsement issued by the Office
of CITB dated 15.07.1958. Ex.P7 & P8 are also the
endorsements issued by CITB. Ex.P9 is the death certificate of
K. Prabhakar, who is said to have demised on 01.10.1978.
Ex.P10 is the Death Certificate of Sharada Devi dated
17.07.2012. Ex.P11 is the Absolute Sale Deed dated
05.05.2022 executed by P. Niranjan Shankar in favour of
Shidhar M. K. in respect of C-schedule Property ie., Flat number
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SF-1, 3BHK in second floor situated in Sharada Elite. Ex.P12 is
the Newspaper publication with regard to an advertisement for
2/3 BHK premium quality ready to occupy flats for sale at
Jayanagar 8th Block. Ex.P13 to 15 are the photographs of the
Flat existing in the suit schedule property. Ex.15(a) is the CD.
Ex.P16 is the digital copy of Sale Deed dated 05.05.2022
executed by P. Niranjan in favour of one Sridhar M.K. in respect
of flat No. SF1, 3BHK in 2 nd floor. Ex.P17 is another Sale Deed
dated 07.10.2021 executed by P. Niranjan Shankar in favour of
Vishnu Kiran, Vidya Vishnu Kiran in respect of Flat No. GF-1 in
the ground floor at Sharada Elite Apartment. Ex.P17(a) is the
certificate under Section 63(1) of BSA. Ex.P18 is a notice
secured under RTI Act. Ex.P18(a) is the document secured
under the RTI Act, with regard to the documents pertaining to the
CITB in relation to the Suit Schedule Property standing in the
name of K. Prabhakar. Ex.P18(b) is the Minutes of Meeting
passed by CITB dated 29.07.1958. Ex.P18(c) to (m) are the
documents relating to the said CITB proceedings in relation to
the Suit Schedule Property.
17. Ex.C1 is marked through P.W.1, which is again Ex.P19,
executed as on 11.04.1980 in favour of Nirmala Devi @ Sharada
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Devi. The recitals of the said document is marked as Ex.P19
through DW.1 in cross-examination. Ex.P20 is the written
statement filed by Defendant No.3 which is marked on
confrontation to DW.1 in his cross-examination.
18. Per contra, the Defendant has also examined and got
marked few documents. Ex.D1 is the letter addressed by the
Chairman. The recitals of the said document reads as follows :-
“I request you kindly to transfer the above site to the name
of my wife Smt. Sarada Devi Prabhakar owing to some
domestic inconvenience, I shall be very much thankful to
you for the same.”
19. Ex.D2 is the letter of transfer of Site No. 35/4 in the name
of Sharada Devi W/o. K. Prabhakar. Ex.D3 is the agreement
cum sale entered into in between Smt. Nirmala Devi @ Sharda
Devi Prabhakar and BDA. Ex.D4 is the Memo issued by CITB in
the name of Nirmala Devi @ Sharada Devi Prabhakar with
regard to possession of the site. Ex.D5 is the Certificate dated
03.07.1982 reflecting the name of Nirmala Devi @ Sharda Devi.
Ex.D6 to 9 are the tax paid receipts. Ex.D10 is the Sanction
plan obtained as on 29.09.1982 by Nirmala Devi @ Sharada
Devi Prabhakar. Ex.D11 is again an approved plan obtained in
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the name of Sharada Devi. Ex.D12 is the discharge of mortgage
deed executed in between Sri. Charan Soharda Co-operative
Bank and Smt. Sharada Devi as on 27.08.2010. Ex.D13 is the
Khata Utar standing in the name of P. Niranjan Shankar. Ex.D14
is the Tax Paid Receipt. Ex.D15 is the building plan approval.
Ex.D16 is the order sheet in OS 1430/2019. Ex.D17 is the
photograph of the suit property. Ex.D18 is a memo filed by
Defendant No. 5 P. Shailaja. Whereby the Defendant No. 5 has
filed her written statement in O.S.No.4928/2020 adopting the
written statement of P Niranjan Shankar.
20. Apart from the said document, certain documents are also
marked which is marked in ‘C’ series on confrontation to PW.1
on her denial. Ex.C2 is the Gift Deed dated 27.08.2010
executed by Smt. Sharda Devi Prabhakar in favour of P.Niranjan
Shankar. Ex.C3 is the khata certificate standing in the name of
Nirajan Shankar P. in respect of the Suit Schedule Property.
Ex.C4 is the khata extract standing in the name of Nirajan
Shankar P, the Defendant No. 1 herein.
21. On perusal of the said documents, the fact that the suit
schedule property was initially allotted to the father of the
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Plaintiff and Defendants herein ie., Defendants 1 to 9 herein and
that the said property is transferred in the name of Sharada Devi
@ Nirmala Devi is admitted. There is one crucial document
which should not be lost sight of. Whereby, Prabhakar himself
has requested the said CITB to transfer the said property in the
name of Sharda Devi @ Nirmala Devi and thereby based upon
the transaction and based upon the said representation, to the
said CITB Authorities, the CITB has transferred the said property
in the name of the mother of the Plaintiff and the Defendants
therein that is Sharda Devi.
22. It is also crucial to note that the said transaction has taken
place during the lifetime of Prabhakar itself. The Plaintiff herself
has placed Ex.P18 obtained under the RTI Act. Ex.P18(a) is the
application for grant of site based upon a cheque for a sum of
₹300 is paid. It is also crucial to note that Ex.P18(a) had a recital
that the site of the building that may be constructed thereon is
not to be alienated by the allottee for 10 years except with the
previous written permission of the Board. Ex.P18(b) is the
Resolution / Meeting of CITB dated 29.07.1958 at 8.30 a.m.
Whereby, as per the proceedings / meeting held on 10.07.1958
the addition under sub number 94 i.e. in the list of allotments
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made in Jayanagar the following name i.e. omitted may be
included ‘Sri Prabhakar’ the name of Prabhakar is included.
Ex.P18(c) is a memo dated 19.08.1958. CITB, Bengaluru has
furnished the correct dimension of Site No. 35/4, Block No. 8,
Jayanagar to Sri. Prabhakar with boundaries, who has paid full
value of the site. Ex.P18(d) is again another memo. Ex.D18(e)
is an endorsement. Ex.D18(f) is another endorsement.
Ex.D18(g) is another endorsement and Ex.D18(h) is another
another endorsement, Ex.D18(j) is another letter addressed by
K. Prabhakar as on 14.02.1959 seeking grant of time to pay the
balance amount due, Ex.D18(k) is the Affidavit.
23. Further, it is also crucial to note that Defendant No. 1 has
raised a specific defence of Defendant having acquired his title
to the suit property by virtue of a Gift Deed dated 27.08.2010
executed by the mother of the Plaintiff and the Defendant No. 1
herein i.e. Smt. Sharada Devi @ Nirmala Devi. In this regard the
evidence of both Plaintiff and the Defendant needs to be
appreciated. The documentary evidence is already perused.
Now it is necessary to look to the ocular evidence on record. The
Plaintiff has examined herself as PW1. She is being cross
examined by Defendant No.1. Some of the crucial aspects are
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highlighted hereunder.
“ನನ್ನ ತಾಯಿಯ ಹೆಸರು ಶಾರಾದ ದೇವಿ @ ನಿರ್ಮಲ ದೇವಿ,
ಬಿಡಿಎ ಅವರು ಅವರ ಹೆಸರಿಗೆ ಕ್ರ ಯ ಪತ್ರ ಮಾಡಿಕೊಟ್ಟಿ ದರು
ಎಂದರೆ ಸರಿಯಲ್ಲ , ನನ್ನ ತಂದೆಯ ಹೆಸರಿಗೆ ಕ್ರ ಯ ಪತ್ರ
ಮಾಡಿಕೊಟ್ಟಿ ರುತ್ತಾ ರೆ.”
24. But, countering this oral evidence of PW.1, the Plaintiff
herself has produced the certified copy of the Sale Deed, which
is marked as Ex.P1. The recitals of the said Ex.P1 is clearly
reflected in the typed of copy of Ex.P1, which is marked as
Ex.P1(a), which is culled out hereunder :-
“Bangalore Development Authority represented by its
Secretary in favour of Smt. Sharada Devi @ Nirmala Devi,
W/o. Late Sri. K. Prabhakar, aged about 47 years.”
25. This fact goes to show that the Sale Deed was executed
in favour of Smt. Sharada Devi @ Nirmala Devi, the document
produced by the Plaintiff herself. It is not the case of the Plaintiff
that he has not gone through the said document. Inspite of
having produced the said document, for the reasons best known
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to the Plaintiff, she has denied of the said fact. Though
countering her case, documentary evidence is placed on record.
26. Further,
“ಸದರಿ ಕ್ರ ಯ ಪತ್ರ ನಾನಾಗಲಿ ನನ್ನ ಅಣ್ಣ ತಮ್ಮ ಂದಿರಾಗಲಿ
ಈವರೆಗೂ ಸಹ ಪ್ರ ಶ್ನಿ ಸಿಲ್ಲ ಯಾವ ದಾವೆಯನ್ನು ಹಾಕಿಲ್ಲ
ಎಂದರೆ ಅದನ್ನು ಇದೇ ಮೊದಲ ಬಾರಿ ನೋಡುತ್ತಿ ರುವುದು.”
27. This oral evidence goes to show that PW.1 has utterly
failed to speak the truth, had she seen the said document for the
first time, nothing prevented her from subsequently getting
amendment and challenging the said Sale Deed executed in
favour of her mother. The said certified copy as per Ex.P1 is
secured as on 04.09.2020 by the Plaintiff herein ie., at the time
of filing the suit. Yet, the Plaintiff has not challenged the said
Sale Deed, but for the Gift Deed.
28. Further,
“ಸದರಿ ಸ್ವ ತ್ತ ನ್ನು ನನ್ನ ತಾಯಿ 1 ನೇ ಪ್ರ ತಿವಾದಿ ನಿರಂಜನ್
ಶಂಕರ್ ಗೆ ದಿ:27.10.2010 ರಂದು ದಾನ ಪತ್ರ
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ಮಾಡಿಕೊಟ್ಟಿ ದ್ದಾ ರೆ ಎಂದರೆ ಆ ವಿಚಾರ ನನಗೆ ನನ್ನ ತಮ್ಮ
ಕೇಸ್ ಹಾಕಿದ ಕಾಲಕ್ಕೆ ಗೊತ್ತಾ ಗಿರುತ್ತ ದೆ, ಅದೇ ಆ ದಾನ ಪತ್ರ
ನಾನು ಈಗ ನೋಡುತ್ತಿ ದ್ದ ೇನೆ ಎಂದರೆ ಸಾಕ್ಷಿ ದಾನ ಪತ್ರ ದಲ್ಲಿ
ಇರುವ ಸಹಿ ಅವರದಲ್ಲ ಎಂದು ಗುರುತಿಸಲು
ನಿರಾಕರಿಸುತ್ತಾ ರೆ.”
29. Further, the said document was marked as Ex.C2 for
identification. Till date the Plaintiff has not examined or got the
said Gift Deed referred to an expert to establish before the court
that the signature found on Ex.C2 does not belong to her mother
i.e. Sharada Devi.
30. Further,
“ನನ್ನ ತಮ್ಮ 2 ನೇ ಪ್ರ ತಿವಾದಿ ಉಮ ಶಂಕರ್ ಇದೆ ಸ್ವ ತ್ತಿ ಗೆ
ಒಂದು ದಾವೆ ಹಾಕಿದ್ದ ರು ಎಂದರೆ ಸರಿ, ಭಾಗಕ್ಕಾ ಗಿ ಹಾಕಿದ್ದ ರು
ಎಂದರೆ ಸರಿ, ಅದರ ದಾವಾ ಸಂಖ್ಯೆ 0.S.1430/2019 ಎಂದರೆ
ಸರಿ, ಸದರಿ ದಾವೆಯನ್ನು ದಿ:21.02.2019 ರಲ್ಲಿ ಹಾಕಿದ್ದ ರು
ಎಂದರೆ ದಿನಾಂಕ ನನಗೆ ನೆನಪಿಲ್ಲ . ಸದರಿ ದಾವೆಯಲ್ಲಿ
ನಿರ್ದಿಷ್ಟ ನ್ಯಾ ಯಾಲಯದ ಶುಲ್ಕ ಮಾಡಲಾಗದೆ ಆ
ದಾವೆಯನ್ನು ವಪಾಸ್ಸು ಪಡೆದಿರುತ್ತಾ ರೆ ಎಂದರೆ ನಾನು ಆ
ದಾವೆಯಲ್ಲಿ ತಕರಾರು ಹಾಕುವ ಪೂರ್ವದಲ್ಲ ೇ ವಾಪಸ್ಸು
23
O.S.No.4928/2020
ತೆಗೆದುಕೊಂಡಿದ್ದಾ ರೆ ಆಗಾಗಿ ನನಗೆ ಗೊತ್ತಿ ಲ್ಲ , ಸದರಿ
ದಾವೆಯನ್ನು ಉಳಿದ ಸಹೋದರ, ಸಹೋದರಿಯರು ಸಹ
ನಾನು ದಾವೆ ಹಾಕಿರುವುದು ಸರಿಯಲ್ಲ ಎಂದು ಅವರಿಗೆ ತಿಳಿ
ಹೇಳಿದ ಕಾರಣದಿಂದಲೂ ಸಹ ಆ ದಾವೆಯನ್ನು ವಾಪಸ್ಸು
ಪಡೆದರು ಎಂದರೆ ಆ ವಿಚಾರ ನನಗೆ ಗೊತ್ತಿ ಲ್ಲ .”
31. Further,
“ನಾವುಗಳು ಒಟ್ಟು ಕುಟುಂಬದಲ್ಲಿ ವಾಸವಾಗಿದ್ದ ೇವೆ ಎಂದು
ನೋಡಿಸಲು ಯಾವುದಾದರು ದಾಖಲೆ ನೀಡಿದ್ದ ೀರಾ ಎಂದರೆ,
ದಾಖಲೆ ಇರುವುದಿಲ್ಲ ಆದರೆ ಹೋಗಿ ಬಂದು ಮಾಡುತ್ತಿ ದ್ದ ವು.”
32. Further,
“ಆ ರೀತಿ ಸಾಲವನ್ನು ಮನೆ ಕಟ್ಟು ವ ಪೂರ್ವದಲ್ಲಿ ಅಂದರೆ
1986 ರಲ್ಲಿ ತಿರಿಸಿರುತ್ತ ೇವೆ. ಆ ಸಂಬಂಧ ನಾವುಗಳು ನಮ್ಮ
ಅಣ್ಣ ನಿಗೆ ಅಧಿಕಾರವನ್ನು ಕೊಟ್ಟ ಬಗ್ಗೆ ಯಾವುದೇ ದಾಖಲೆ
ಇರುವುದಿಲ್ಲ . ದಾವಾ ಸ್ವ ತ್ತಿ ಗೆ ನಾವು ಕಂದಾಯ ಕಟ್ಟಿ ರುವುದಿಲ್ಲ
ನಮ್ಮ ಅಣ್ಣ ಕಟ್ಟಿ ರುತ್ತಾ ನೆ. ಅಣ್ಣ ನ ಹೆಸರು ರವಿಶಂಕರ್.”
33. It is also necessary to look to the ocular evidence placed
on record by the Defendant. Reiterating his written statement,
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O.S.No.4928/2020
the Defendant No. 1 has examined himself as DW1, wherein he
has stated as under :-
“It is true to suggest that my father died on 01.10.1978
and my mother was demised on 17.07.2010. It is true to
suggest that my father had applied for side allotment with
CITB as on 19.05.1958. It is true to suggest that in
furtherance of the same the site number was allotted to
my father. Witness further volunteers saying that only
intimation was made to my father. The harassment was
made to my mother. It is true to suggest that my father had
addressed the letter vide Ex.P1, requesting CITB to
transfer the suit site in favour of my mother.”
34. Further, to the suggestion, the witness has answered as
under :-
” I do not know if the said site was not transferred to my
mother towards maintenance or not. It is true to suggest
that Ex.D1 reflects of domestic inconvenience and not
towards maintenance. It is true to suggest that the suit
schedule property was worth more than ₹ 100 in the year
25
O.S.No.4928/20201962.”
35. Apart from these oral evidence, certain conduct of the
parties are need to be appreciated in the case in hand. It is the
documents that is placed on record that needs a careful
appreciation. Ex.P18 is the crucial document. Initially an
Application for allotment of site is made by K. Prabhakar with the
CITB as per Ex.P18(b) and as per the Resolution held as per
Ex.P18(b), Site No. 35/4 is said to have been allotted to Sri. K.
Prabhakar. Ex.P18(c) is the receipt for having paid the full value
of the site. Likewise Ex.P18(d), (e), (f), (g), (h) are also receipts
for having paid certain amount. Ex.P18(j) is crucial document.
Whereby, K. Prabhakar has addressed a letter as on 14.02.1959
to the CITB, seeking time to pay the balance amount due to
CITB. The contents are extracted as under. :-
“I, the undersigned respectfully request you to kindly grant
me time as much as possible to pay the balance amount
due to your office in respect of Site No. 35/4.”
36. Ex.P18(m) also needs a careful appreciation. It is dated
04.03.1960. Whereby, a final notice is issued by CITB to Sri. K.
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Prabhakar, which reads as under :-
“The time for payment of value of the above site allotted to
you expired on 14.10.1958 and you have not paid the full
value with interest due on belated payments. Take notice if
balance of the value of the above site is not paid on or
before 15.03.1960, the allotment of the above site to you
will be cancelled without any further notice.”
37. Along with the said letter, another document needs a
careful appreciation ie., Ex.D1. Ex.D1 is a letter addressed by
K. Prabhakar in favour of the Chairman, City Improvement
Board. It is dated 12.02.1962. The contents of the said
document is culled out hereunder :
“I applied for the above site on 19.05.1958 and you were
kind enough to grant the site. I have paid the entire
amount. I have not yet taken possession of the site. I
request you kindly to transfer the above site in the name
of my wife Smt. Sharda Devi Prabhakar, owing to some
domestic inconvenience.”
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O.S.No.4928/2020
38. So, this letter is placed before the Board and the
Government of Mysore i.e. the Office of the Chairman, City
Improvement Trust Board has passed an order as on
14.02.1962. Whereby, the transfer of site is being made i.e. Site
No.35/4 is made to the name of Sharada Devi wife of K.
Prabhakar. The contents reads as under :-
“I write to state that the transfer of the above mentioned
site from your name to the name of Sharada Devi wife of
K. Prabhakar will be permitted on complying the following
conditions :
1. The transferee shall have to pay 6 ¼ % of the above
site, in addition to the full value of the site already paid ;
2. The transfer fee of Rs.10/- shell be paid,
3. The rate that is prevailing as on the date of transfer
shall be charged to the transferee in respect of the site
transferred.
4. The transferee shall execute the necessary affidavit
and agreement ; and
5. The original possession certificate should be
surrendered to this office.”
39. Likewise Ex.D2 and Ex.D3 are clear evidence of the fact
that the said sale deed finally came to be executed in favour of
Sharada Devi vide Ex.P1. And as per Ex.D4, as on 14.10.1965,
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the possession of Site No. 35/4 was handed over to Smt.
Sharada Devi @ Nirmala Devi, W/o. Sri. K. Prabhakar and the
Khata also got transferred in the name of Smt. Sharada Devi @
Nirmala Devi as on 03.07.1982 and the tax was also paid in the
name of Smt. Sharada Devi. This fact goes to show that Smt.
Sharada Devi @ Nirmala Devi, by virtue of an assignment and
transfer made by her husband K. Prabhakar, the property came
to be allotted and transferred in the name of his wife. Thereby it
is crucial to note that the amount to the said purchase of the site
should have been contributed by the family of Smt. Sharada
Devi @ Nirmala Devi. But for the same, the site would not have
been transferred in the name of Smt. Sharada Devi @ Nirmala
Devi. Therefore, on the basis of probability, Smt. Sharada Devi
@ Nirmala Devi became the absolute owner of the said property
i.e. the suit schedule property and thereby the CITB had
executed the said property in her name by securing certain
affidavits and other documents from the original transferee i.e.
original allottee i.e. K. Prabhakar. Therefore during the lifetime
of K. Prabhakar itself, the suit property came to be transferred
and allotted in the name of Smt. Sharada Devi @ Nirmala Devi,
and vide Ex.P1 a Sale Deed also came to be executed in favour
of Smt. Sharada Devi @ Nirmala Devi, as on 16.06.1980.
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40. Therefore, said Smt. Sharada Devi @ Nirmala Devi had
exercised all rights of ownership in respect of the suit property.
In fact she had raised the loan upon the said property as well.
And it is also crucial to note that Ex.D12 is also placed on record
by the Defendant No.1. Whereby, as on 27.08.2010 Smt.
Sharada Devi @ Nirmala Devi had discharged a mortgage deed
whereby the property was mortgaged to Sri. Charan Souharda
Co-operative Bank Ltd., for a sum of ₹ 11,00,000 as on
20.10.2003. And thereafter on the very same day ie., on
27.08.2010 Sharada Devi Prabhakar has executed a Gift Deed
in favour of P. Niranjan Shankar, the Defendant No. 1 herein.
The recitals of the said document reads as under :-
“The Donor mortgaged the scheduled property to raise a
loan from Sri Charan Souhardha Co-operative Bank Ltd.,
whereas the above said loan was discharged on
24.08.2010 by the Donee who have an account in the
above said bank in order to release the burden of the
Donor, the mother. The Donee is the third son of the
Donor and in consideration of love and affection towards
Donee which she has been bestowing upon the Donee
30
O.S.No.4928/2020and even now the same love and affection continues
between the Donor and Donee and the Donee has been
of immense help in looking after the Donor, the Donor
hereby wish to GIFT the schedule Property n the name of
the Donee under the Gift Deed.”
41. Thereby, as absolute owner of the said site, said Sharda
Devi had mortgaged the property and the said loan was
discharged by Defendant No. 1 and thereby out of love and
offection she has executed Ex.C2 Gift Deed in favour of
Defendant No. 1 herein and the khata is also mutated in the
name of the Defendant No. 1 herein. This being the case, the
Defendant No. 1 has acquired a subsisting title in his favour.
42. The counsel for both sides have relied upon citations in
supportive of their claim. The Learned Counsel for the
Defendants 1 and 5 has relied upon AIR 1964 Madras 387,
whereby it is held as under :-
“Section 14 – Property got by widow under Section 3,
Hindu Women’s Rights to Property Act – applies to the
case and the widow gets an absolute title.”
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43. Another citation reported in 2019 (2) Karnataka Law
Journal 739 (SC), Wherein their Lordships have held that,
“Transfer of Property Act, 1982 – Section 123 – Gift Deed
– Execution of Gift Deed in favour of a person who takes
care of Donor – Appellants (sons) were residing in United
States, but failed to take care of their parents – Property
was not ancestral – Examination of the attesting witnesses
– Not necessary – In absence of any evidence of any
forgery or fabrication and in absence of specific denial of
execution of Gift Deed in the manner held in Kannan
Nambiar’s case, the Donee was under no obligation to
examine one of the attesting witnesses of the Gift Deed.”
44. Another citation reported in ILR 2007 KARNATAKA 3068
in the case of Muniyappa H. Vs. M. Subbarayan, since dead by
his LRs, wherein their Lordships have held that,
“The proceeding under Order 39 Rule 2(A) of code of civil
procedure calls for a serious approach – The party
complaining of disobedience to order of temporary
injunction must establish it with acceptable proof – There
has to be separate enquiry when an application is moved
under Order 39 Rule 2(A) – The approach of both the
Courts below is totally irrational – Orders under revision
are set aside.”
32
O.S.No.4928/2020
45. In the case in hand also, it is crucial to note that the Gift
Deed executed in favour of Defendant No.1 ie., Ex.C2 is
attested by 2 sons namely P. Ravishankar and P. Nithyashankar.
Therefore, the 2 other sons P. Ravishankar and Nithyashankar
have themselves consented to the said Gift Deed, thereby the
entire family and the Defendant No.3 & 4 had knowledge about
the said Gift Deed. It is not their case that their signatures to
Ex.C2 was forged or the signature of Sharada Devi was forged
by Defendant No.1. On the other hand, the Defendants were
aware of the said Gift Deed executed by their mother. Thereby,
on the said grounds also, the Defendant No. 2 has probabalized
Issue No. 3 casted upon him and thereby Issue No. 3 needs an
affirmative finding and consequentially the Issue No.1 casted
upon the Plaintiff that she along with the Defendants had jointly
succeeded to the suit properly after the demise of her parents
needs to be answered in Negative.
46. Additional Issue Nos.1 & 2 : Additional Issue No.1 is
casted upon the Plaintiff prove that the Defendant No.1
pendente lite alienated the flat bearing No.SF 1 and two other
flats of Sharada Elite in favour of Defendants No.6 to 10 by
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O.S.No.4928/2020
virtue of 3 Sale Deeds and further under Additional Issue No.2
the burden is upon the Plaintiff to make out a case that the Sale
Deeds dated 07.10.2021, 15.07.2019 and 05.05.2022 executed
in favour of Defendants No.6 to 10 by Defendant No. 1 are not
binding on the Plaintiff’s share. In this regard the Plaintiff as
discussed supra has placed Ex.P1 to P20 documents, which are
the Sale Deeds executed in favour of the Plaintiff’s mother and
few photographs pertaining to the Suit Schedule Property is also
placed. In furtherance of my findings to Issue No.1, the Plaintiff
has failed to prove Plaintiff’s joint possession in respect of the
suit schedule property, having held in joint with that of the
Defendant No. 1 herein. Per contra, the Defendant No. 1 has
probabalised his case of he having succeeded to the suit
schedule property on the basis of the Gift Deed executed by
Smt. Sharada Devi @ Nirmala Devi, his mother. And the Plaintiff
has placed Ex.P16 and Ex.P17. Ex.P16 is the Sale Deed dated
05.05.2022 executed by P. Niranjan Shankara in favour of
Sridhar M.K. in respect of one of the flats that is put up in
Sharada Elite Apartment. i.e. Flat No. SF 1 in the second floor of
Sharada Elite, the Suit Schedule Property herein. Ex.P17 is the
Sale Deed executed by P. Niranjan Shankar, the Defendant No.1
herein, in favour of one L.S. Vishnu Kiran and Smt. Vidya Vishnu
34
O.S.No.4928/2020
Kiran dated 07.10.2021. It is in respect of another flat situated in
Sharada Elite ie., GF1.
47. Plaintiff has maintained the present suit as on 12.10.2020.
The Defendant No.1 and 2 were served as on 27.01.2021. And
that the first sale deed ie., Ex.P17 is dated 07.10.2021. The
Defendant No. 1 was not at all aware of the suit until the service
of the said summons in respect of the one flat and further from
the date of the Plaintiff having filed the suit, the Sale Deed ie.,
Ex.P17 dated 07.10.2021 and 05.05.2022 are said to have been
executed during the pendency of the suit. But however, it is
crucial to note that the burden is upon the Plaintiff to prove that
the Plaintiff had a share in the suit schedule property and she
had jointly enjoyed the suit property and in order to defeat the
share of the Plaintiff, this Defendant No. 1 had sold the flats to
the third parties and had created third party interest is
concerned, however, based upon the said documentary
evidence, no doubt the suit schedule property that is one of the
flats which are alleged to have been sold are sold during the
pendency of the suit. To that extent, the additional Issue No.1
needs an affirmative finding so far as Flat No. GF1 situated in
the ground floor of Sharada Elte vide Ex.P17 and Flat No. SF1
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O.S.No.4928/2020
situated in the second floor of Sharada Elite vide Ex.P16.
Therefore to that extent the Additional Issue No.1 needs an
affirmative findings.
48. So far as the burden upon the Plaintiff to make out the
case that the sale deeds dated 07.10.2021, 17.07.2019 and
05.05.2022 executed in favour of Defendant No. 6 to 10 by
Defendant No. 1 are not binding on the Plaintiff’s share is
concerned, Issue No. 1 is answered in negative holding that the
Plaintiff has no share in the Suit Schedule Property since the
mother of the Plaintiff by name Smt. Sharada Devi @ Nirmala
Devi having executed a Gift Deed in favour of Defendant No.1
and having exercised her right of absolute ownership of the suit
property, has clearly expressed her intention that the Suit
Schedule Property is her absolute property. Thereby, the Plaintiff
having failed to prove and establish her share in the suit
Property, the Additional Issue No. 2 stands answered in negative
on the ground that the sale deeds executed by Defendant No.1
in favour of Defendant 6 to 10 is by virtue of the absolute
ownership acquired by him on the basis of the Gift Deed
executed in his favour by his mother Smt. Sharada Devi @
Nirmala Devi. Therefore, the Plaintiff has failed to make out her
36
O.S.No.4928/2020
case that the sale deeds are not binding upon her share in
absence of any share in the suit property.
49. Further, Learned Counsel for the Defendant has relied
upon a citation reported in ILR 2007 KARNATAKA 3068 in the
case of Muniyappa H. Vs. M. Subbarayan, since dead by his
LRs, wherein their Lordships have held that,
“The proceeding under Order 39 Rule 2(A) of code of civil
procedure calls for a serious approach – The party
complaining of disobedience to order of temporary
injunction must establish it with acceptable proof – There
has to be separate enquiry when an application is moved
under Order 39 Rule 2(A) – The approach of both the
Courts below is totally irrational – Orders under revision
are set aside.”
50. In the case in hand, except for the fact that there was an
alienation by Defendant No.1 in favour of Defendant No.6 to 10
is concerned, the Plaintiff has also failed to establish that there
was any order of Temporary Injunction existing in her favour as
on the date of the said alienation with regard to non-alienation of
the property. But however, on the records it goes to show that
there is an alienation during the pendency of the suit and the
37
O.S.No.4928/2020
Defendant No. 1 was aware of the existing suit. There is no
willful disobedience as contented by the Plaintiff since there was
no Temporary Injunction granted restraining the Defendant No.1
from alienating the Suit Schedule Property. Therefore on the
said reasons as well, it needs an affirmative finding for the
reasons that the alienations have taken place during the
pendency of the suit. But however there is no willful
disobedience of any interim order as contented. Accordingly
Additional Issue No. 2 stands answered in negative.
51. Additional Issue No. 3 : This issue is casted upon the
Defendants 6 to 10 to prove that they are the bonafide
purchasers of the flats. The Defendants 6 to 10 are the
purchasers of the suit property. The Defendants based upon the
title being conveyed in favour of Defendant No.1 and Defendant
No.1 having raised the loan has put up the said apartment i.e.
Sharada Elite in the suit schedule property and he has exercised
all rights of ownership and has put up the construction in the
said suit schedule property. Based upon Ex.C2 the Gift Deed
and the khata is also standing in the name of Defendant No.1.
The Defendant No. 6 to 10, who are the purchasers of the flats
in the Suit Schedule Property have scrutinized the title of
38
O.S.No.4928/2020
Defendant No. 1 and having confirmed themselves that the suit
schedule property is the absolute property of Smt. Sharada Devi
@ Nirmala Devi and thereby she having conveyed the Gift Deed
in favour of Defendant No. 1 on the ground that, Defendant No.1
had discharged the mortgage that was subsisting and it was a
burden that was existing on the Smt. Sharada Devi @ Nirmala
Devi to discharge the said mortgage. And thereby confirming
the title and ownership of Defendant No.1, the Defendant No.6
to 10 had no knowledge of the present suit until they were
impleaded in the present suit ie., the Defendant No. 6 to 9 were
impleaded in the present suit based upon the interlocutory
application that was filed by the Plaintiff to bring them on record,
based upon the I.A.No.5 filed under Order No. 1 Rule 10(2) of
CPC as on 15.09.2022 and the said deeds have taken place
prior to the said alleged date that is 15.09.2022. Therefore, the
proposed Defendants No. 6 to No. 9 had no notice of the
present suit. As such, the Defendants 6 to 10 have probabalized
that they are the bonafide purchasers of the above flats that they
have acquired through the Sale Deeds executed by Defendant
No.1 herein. Therefore, Additional Issue No.3 stands answered
in the Affirmative.
39
O.S.No.4928/2020
52. Issue No.2 & 4 : Issue No.2 is upon the Plaintiff to prove
her entitlement of her 1/6th share in the Suit Schedule Property
and Issue No.4 is with regard to entitlement for the relief sought
by the Plaintiff in the suit. In furtherance of my findings to Issue
No. 1 and 3, the Plaintiff has failed to prove that Plaintiff had
held the suit property jointly along with the other Defendants and
thereby she had succeeded to the suit property after the demise
of her parents being negatived, the Plaintiff is not entitled for any
share in the Suit Schedule Property.
53. And it is also crucial to note that, on perusal of the
documentary as well as ocular evidence and also the conduct of
both the Plaintiff and the Defendant herein, the case of the
Defendant is more probabalized whereby the Defendant No. 1
has duly discharged the mortgage that was raised by his mother
and during the lifetime of his mother, the Defendant No. 1 has
duly discharged the said mortgage and thereby the said mother
being satisfied with the duties of Defendant No. 1, has validly
executed a Gift Deed and has expressed her love and affection
towards one of her sons, who had discharged the mortgage and
the liability that was there on the property as well as on his
mother ie., the Donor. Therefore, the mother had exercised her
40
O.S.No.4928/2020
right of ownership in the suit Property. Likewise she has
executed a Gift Deed in favour of the Defendant No.1 herein.
54. And further the counsel for the Defendant has relied upon
another citation reported in 1984 SCC Online Ker 174, in the
case of Kannan Nambiar v/s Narayani Amma and others,
wherein their Lordships have held that,
“No evidence was adduced to show that Anandam
Nambiar has taken leave. On a careful evaluation of the
evidence it is difficult for us to hold that the gift deed was
executed without the free will and knowledge of Anandan
Nambiar. No vitiating causes are established in the case.
We hold that the document Ex.A1 is valid and genuine. In
the result, there is to merit in the appeal and it is
dismissed, in the circumstances without costs.”
Whereas in the case in hand, the Defendants 2 and 3
have consented to the Gift Deed executed in favour of
Defendant No.1.
55. Further another citation reported in AIR 2024 (NOC) 770
(AP), wherein their Lordships have held that,
“While plaintiffs asserted joint possession but did not
41
O.S.No.4928/2020
provide any documentary evidence to prove their claim –
Whereas defendants provided evidence of individual
ownership and possession, such as D-form patta and title
deeds supporting their ownership claims-Evidence on
record indicated that there was partition of Item No.3
among defendants and defendant was residing in his
share of site covered under Item No.3 raising tiled house
by paying house taxes.”
In the case in hand as well, the khata extract and building
plan was standing in the name of Defendant No.1 and this
Plaintiff was married and residing separately. Therefore,
the Plaintiff has failed to prove her joint possession in
respect of the Suit Schedule Property.
56. Another citation reported in AIR Online 2021 Kar 4368 in
the case of Vijaya Kumar Vs. Vanajakshmi and another , wherein
their Lordships have held that,
“Hindu Succession Act (30 of 1956), S.14(1) Explanation :
Right of female over property – Absolute ownership-Suit
for partition-Suit properties purchased in name of mother
of defendants. She would acquire absolute title over suit
properties by virtue of Section 14(1).”This citation is aptly applicable to the case in hand. The
42
O.S.No.4928/2020mother of the Plaintiff and Defendants 1 to 5, by name
Smt. Sharada Devi, had acquired title by way of transfer
has exercised all her right under Section 14(1) of the
Hindu Succession Act. If at all the Plaintiff should have
challenged the said sale in favour of Smt. Sharada Devi
which they did not during her lifetime.
57. Another citation reported in 2010 (1) Property Law
Decisions 418 (SC) in the case of Gangamma Vs. G.
Nagarathnamma and others, wherein their Lordships have held
that,
“Hindu Succession Act, 1956 – Section 14(1) – Right of
Hindu female – Certain properties recorded in the name of
wife of propositus – In absence of evidence to contrary she
is full owner of those properties – Hence, plea that they
were bought benami in her name cannot be accepted.”
58. Another citation reported in NESARGI, J, in the case of
Lingamma Vs. Basavaraju, wherein it is held that,
HINDU SUCCESSION ACT, 1956 – Section 14(1) Scope
and effect-Property acquired in lieu of maintenance being
life interest ripens into full ownership.
43
O.S.No.4928/2020
HELD:
“The Settlement Deed has not been challenged by the
plaintiff and on the other hand it has been acted upon by
the plaintiff. Properties which are the suit items remained
in the possession of Honnamma and her husband till his
death. The husband did not reserve anything for himself
and under the Settlement Deed has taken care to provide
shelter and maintenance to his wife Honnamma, after his
death. It was not settled that they should remain as joint
family properties. On the death of her husband,
Honnamma acquired the suit properties in lieu of
maintenance and continued to be in possession. She had
full right to enjoy the properties. Section 14(1) applies to
the facts and circumstances of the case. Honnamma, as
absolute owner of the suit schedule properties had every
right to gift away the properties.”
59. Another citation reported in AIR 2024 GAUHATI 106 in the
case of Damayanthi Bora Vs. Neelamani Bora and others,
wherein their Lordships have held that,
“Evidence Act (1 of 1872), S.68 Execution of Will – Proof –
Registered Will was executed in favour of daughter by her
father by leaving other legal heirs – Plea of another
daughter that her father was suffering from cancer and
44
O.S.No.4928/2020
therefore he did not have sound mind at time of execution
of Will – She further stated that while executing Will other
heirs were overlooked which created doubt about
authenticity of Will – Witness of Will stated that he wrote
Will and read over its contents to testator – Witness also
disclosed that testator agreed that Will was written
according to his wish and thereafter he put his thumb
impression upon Will – Doctor stated that testator was
operated for cancer and discharged after surgical
operation – Fact that testator was suffering from cancer,
per se does not mean that he did not have sound mind to
execute Will – No evidence to prove that testator had
feeble mind at time of execution of Will – Will held to be
genuine.”
60. Another citation reported in Chandrakantaraj Urs &
Navadgi JJ. In the case of Thayapa Vs. Aswathanarayanappa,
wherein, Their Lordships have held that,
“It is only when ascertained properties fall to the share of a
Hindu female which can be said to have been acquired by
her before or after the commencement of the Act that
becomes her absolute (property in terms of sub-section
(1) of Section 14 of the Act.”
61. Hence, safely relying upon the above Verdicts of Hon’ble
Apex Court and the Hon’ble High Courts and based upon the
available materials on record, the Plaintiff has failed to establish
45
O.S.No.4928/2020
that she has succeeded to the suit property along with her other
brothers and sisters to the Suit Schedule Property as joint
family members. The oral evidence would go to show that the
Plaintiff is married and residing at Dharwad. Likewise all the
daughters of said K. Prabhakar and Nirmala Devi @ Sharada
Devi were all married and residing separately. So far as the
present suit is concerned, the Plaintiff has sought the relief of
Partition & Separate Possession to an extent of 1/6th share in
the Suit Schedule Property. In furtherance of my findings to
Issue No.1, the Plaintiff having failed to establish her joint
possession in the Suit Schedule Property and per contra the
Defendant No.1, having probabalised Issue No. 3 on the ground
of he having acquired the said property on the basis of Gift
Deed, has exercised all rights of ownership and has put up
construction in the said property. And by virtue of Section 14 of
the Hindu Succession Act as well, the mother of the Plaintiff and
Defendant No.1 to 5 herein by name Smt. Nirmala Devi @
Sharada Devi has executed a Gift Deed in favour of Defendant
No.1 towards love and affection. Thereby the Plaintiff though
had challenged the said Gift Deed, but has failed to establish the
fact that the said Gift Deed was a concoction or created one. On
the other hand, Defendant No. 1 has placed material to show of
46
O.S.No.4928/2020
the subsisting loan with the Charan Souharda Co-operative
Bank, which the Defendant No.1 has discharged the mortgage
and on discharge of the said mortgage, the Mmother of
Defendant No. 1 by name Nirmala Devi @ Sharada Devi has
executed a Gift Deed in favour of Defendant No. 1. Thereby, the
the Plaintiff has failed to establish the said Gift Deed is not
binding on the Plaintiff.
62. Further, safely relying on the Verdicts of Hon’ble High
Court & Hon’ble Apex Court, relied by the counsel for the
Defendant No.1, it is crucial to note that K. Prabhakar had
sought for transfer of site in favour of Sharada Devi @ Nirmala
Devi and thereby said CITB had executed Sale Deed in favour
of Smt. Sharada Devi @ Nirmala Devi. Till date the Plaintiff nor
the Defendants 2 to 5 have challenged the said Sale Deed in
favour of Sharada Devi @ Nirmala Devi. The oral evidence of
P.W.1 with regard to the Gift Deed will have to be brushed aside,
as the Plaintiff was aware of the Gift Deed as on the date of suit
itself. The conduct of the Plaintiff plays important role herein.
Thereby, Issue No. 2 & 4 needs a negative finding holding that
the Plaintiff is not entitled for any share in the Suit Schedule
Property, since said Smt. Nirmala Devi @ Sharada Devi has
47
O.S.No.4928/2020
exercised her right under Section 14 of Hindu Succession Act,
and the Plaintiff cannot challenge the said Gift Deed executed by
Smt. Nirmala Devi @ Sharada Devi. Accordingly, Issue No.2
and 4 are answered in the negative holding that the Plaintiff is
not entitled for any share in the Suit Schedule Property much
less her 1/6th share in the Suit Schedule Property.
62. Issue No.5 : In furtherance of my findings to the above
Issues, I proceed to pass the following:
ORDER
The suit of the Plaintiff seeking the relief of
Partition & Separate Possession to an extent of
1/6th share in the Suit Schedule Property and
consequentially to declare that the Gift Deed
dated 27.08.2010 executed in favour of Defendant
No.1 as not binding on the Plaintiff’s share, is
hereby dismissed with costs.
Office to draw Decree accordingly.
(Dictated to the Stenographer G-1, computerized by her, corrected
and then pronounced by me in the Open Court, on this the 17 th day
of April, 2026)(A.M. NALINI KUMARI)
XIV Addl. City Civil & Sessions Judge,
Bengaluru.
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O.S.No.4928/2020
ANNEXURE
List of witnesses examined for the Plaintiff’s side:
PW.1 : Chitra Inchalmath @ P. Chitradevi
List of exhibits marked for the Plaintiff’s side:
Ex.P.1 Certified copy of Sale Deed 11.4.1980
Ex.P.2 Typed copy of Sale Deed
Ex.P.3 Certified copy of Gift Deed 27.8.2010
Ex.P4 Affidavit - G.tree
Ex.P.5 Coy of application
Ex.P.6 & 7 Endorsements
Ex.P.8 Memo dated 19.08.1958
Ex.P.9 Certified copy of death certificate of K.
Prabhakar
Ex.P.10 Certified copy of Death Certificate of Sharada
Devi
Ex.P.11 Digital copy of Sale Deed along with E.C.
Ex.P.12 Paper Publication
Ex.P.13 to 15 Printout of photographs
Ex.P.13 a to CD
15 a
Ex.P.16 Digital copy of Sale Deed
Ex.P.17 Digigal copy of Sale Deed
Ex.P.17 a Certificate
Ex.P.18 Endorsement
Ex.P.18 a to n Documents attached with Ex.P18
Ex.P.19 Portion of document marked in Ex.C1
Ex.P.20 Certified copy of written statement in O.S.No.
1430/2019
49
O.S.No.4928/2020List of exhibits marked during Cross-examination
Ex.C1 Sale Deed dated 11.4.1980
Ex.C2 Gift Deed 27.8.2010
Ex.C3 Khata Certificate
Ex.C4 Khata ExtractList of witnesses examined on behalf of Defendants’ side:
DW.1 : Niranjan Shankar P.
List of exhibits marked on behalf of the Defendants’ side:
Ex.D.1 Letter
Ex.D.2 Intimation letter
Ex.D.3 True copy of Agreement
Ex.D.4 Memo dated 14.10.1965
Ex.D.5 Certificate
Ex.D.6 to 9 Tax paid receipts
Ex.D.10 Building plan sanction
Ex.D.11 Approved building plan
Ex.D.12 Deed of Discharge of mortgage
Ex.D.13 Khata Utar
Ex.D.14 Tax paid receipt
Ex.D.15 Modified building plan
Ex.D.16 Certified Copy of order sheet in O.S.No.
4030/2019
Ex.D.17 Photo printout
Ex.D.18 Memo in O.S.No. 4928/2020
(A.M. NALINI KUMARI)
XIV Addl. City Civil & Sessions Judge,
Bengaluru.
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