Bangalore District Court
Gowramma vs Shivamma C on 3 May, 2025
KABC010253732014
IN THE COURT OF THE X ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-26).
Dated this the 3rd day of May, 2025.
Present
Sri Vijaya Kumar Rai, B.Com., LL.B.,
X Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.9243/2014
Plaintiff: Smt.Gowramma
(Deadby her Lrs)
1(a) Sri Bhaskara, B
s/o R. Basavaraj and
late Gowramma
aged about 44 years
r/at No.202, Cubbonpet
Bengaluru-560 002.
1(b) Smt.B. Rajini
d/o R. Basavaraj and
late Gowramma
aged about 40 years
r/at Kote Beedhi
Vijayapura Town
Devanahalli taluk
Bengaluru Rural District.
(By Sri T.K. Rajagopala, Adv.)
Vs.
Defendant: Smt.C. Shivamma
w/o N. Mruthyunjaya
aged about 63 years
r/at No.32, Swasthi Road
2nd Cross, Shanthinagar
Bengaluru-560 027.
(By Sri B.S. Dhananjaya, Adv.)
Date of institution of the suit 28.11.2014
2 O.S.No.9243/2014
Nature of the suit For partition and permanent
injunction
Date of the commencement 11.12.2017
of recording of evidence
Date on which the judgment 03.05.2025
Pronounced
Total duration Years Months Days
10 05 05
(Vijaya Kumar Rai)
X Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This suit is filed by the plaintiff for partition of the suit schedule properties and for demarcation of half share in the suit schedule properties.
2. The case of the plaintiff in brief is as hereunder:-
One Sri Chennaveeradevarappa had two wives by name Chikkarudramma and Rudramma. Deceased plaintiff Smt.Gowramma and defendant are daughters of said Rudramma, the second wife of T. Chennaveeradevarappa. Rudramma died on 23.06.2012, leaving behind the deceased plaintiff and defendant. Suit 'A' schedule property was purchased by Rudramma through a registered sale deed dated 06.09.1967 and suit 'B' schedule property is allotted to Rudramma through a lease-cum-sale agreement dated 01.01.1983 and through the 3 O.S.No.9243/2014 sale deed dated 23.09.2008 executed by BDA. Rudramma was the permanent resident of Sulibele Village, Hoskote taluk and retained in a dilapidated house. During that time, in order to maintain equal distance between two daughters the plaintiff and defendant herein, Rudramma used to come to the house of both the daughters and staying for a short period in both the houses with equal love and affection. Rudramma was more concerned with the plaintiff as the economic and financial condition of her family was very bad. But, on the other hand, economic and financial condition of the defendant was very good. Rudramma was born illiterate and she used to affix her LTM in all the documents. When Rudramma came for a short stay in the house of the defendant, the defendant has managed to obtain two gift deeds dated 15.04.2009 and 28.10.2010 in respect of 'A' and 'B' schedule properties. Both, these gift deeds were written in English and Rudramma had affixed her LTM. But, it is not attested as per law. Rudramma was aged 76 years and she had age related ailments and therefore, her mental faculty had deteriorated to such an extent that she could not make out from the nature of the document and its contents. Rudramma never stayed in the house of the defendant and in order to create an impression that Rudramma was near to the defendant false averments are made in those gift deeds. Defendant by taking 4 O.S.No.9243/2014 advantage of illiteracy and old age without informing her about the nature of the document by making false representation, undue influence and fraud deliberately did not disclose the contents of these gift deeds and managed to obtain it. These gift deeds were not executed by Rudramma on her own volition. The contents of the gift deeds were not read over to her. The gift deeds are shrouded with suspicious circumstances, more particularly when the plaintiff being a natural heir excluded from these two gift deeds, the defendant must have brought unbearable pressure on her late mother and subjected her to coercion and untold harassment and these two gift deeds are the outcome of said vitiating factors and therefore these two gift deeds are not genuine and obtained when Rudramma was in feeble mind and during her stay in the house of the defendant. It is also really doubtful whether LTM found in the said two gift deeds are really that of said late Rudramma. Sub-Registrars have also not made any endorsements in it. Therefore, Rudramma must be said to have died intestate. The husband of the defendant is a doctor and defendant owns several properties. As such, Rudramma never wanted to gift away suit schedule properties to the defendant.
In the first week of July 2013, when the plaintiff made enquiries and sensing the suspicious conduct came to know 5 O.S.No.9243/2014 about these gift deeds and inspite of the demand, the defendant did not come forward for partition. The plaintiff and defendant are in joint possession and therefore filed this suit for partition.
3. Pursuant to the suit summons issued by this Court, the defendant entered appearance and filed her written statement. In the written statement, while asserting the exclusive title of the Rudramma over suit 'A' and 'B' schedule properties and execution of two gift deeds in her favour, she has denied all the allegations made against her in the plaint. She has taken up a contention that Rudramma had executed these two gift deeds in her favour as a result of natural love and affection and thereby she became the absolute owner of the suit schedule properties. In so far as the illiteracy of Rudramma is concerned, she has taken up a contention that except the fact that she used to put her LTM to the documents, she was a worldly-wise having extensive knowledge about the documents, registration process and legal proceedings and executed the gift deeds, knowing its contents.
4. The defendant has referred various litigations in which Rudramma had personally fought. She has also pleaded that she was intended to construct a nursing home for the husband of the defendant Dr.Mruthyunjaya in the sites purchased by her through the sale deed dated 08.08.1962, but BDA formed layout and therefore Rudramma and other revenue site owners in Sy.No.111 6 O.S.No.9243/2014 registered Association by name Bapuji Nagar Attiguppe Site Owners Association and Rudramma was one of the member of the said Association by paying the membership charges. She made an application to BDA seeking reconveying the sites in her favour and therefore, two sites were reconvened in her favour by executing a registered lease-cum-sale agreement dated 01.01.1983, allotment letter dated 16.09.1982, possession certificate dated 30.04.1983, khatha dated 26.05.1983 and registered sale deed dated 23.09.2008. It is stated that during the old age of Rudramma, the defendant and her husband have taken care of her till her death.
5. The defendant has further pleaded that earlier Rudramma was residing at Sulibele village, Hoskote Taluk during the year 1974-75 with her husband and she had leased out suit 'A' schedule property since the tenant did not vacate the premises she had filed eviction petition under Karnataka Rent Control Act before Principal Munsiff, Bengaluru and during the pendency of the said petition, her husband Sri D. Chennaveeradevarappa died on 19.12.1976 and she continued the proceedings. She had filed an application under Section 29(4) of House Rent Control Act for recovery of the arrears of rent. The tenant took up the matter to the Hon'ble High Court by filing CRP No.1071/1975 and later Rudramma filed Ex.Case No.237/1978 7 O.S.No.9243/2014 and took possession of suit 'A' schedule property through court proceedings on 13.07.1978. She had intimated the vacancy of the premises to Rent Controller and requested to allot the same to her. But, her request was rejected and allotted to a third party by name Mohamed Ammeuddin. She filed HRC No.169/1978-79 before the Deputy Commissioner and succeeded in it wherein she had specifically stated that she would settle down in Bengaluru permanently as she needed constant medical attention. This appeal was allowed on 21.12.1978 and she occupied suit 'A' schedule property and continued to reside permanently in it. Her vendor Ankaiah instituted suit for declaration in O.S.No.1105/1985, challenging the allotment of site. Rudramma fought the litigation and the suit was dismissed. One Dasharath Rao and Chandraiah, Police Inspectors of Vijayanagar interfered with her possession and therefore, she filed a complaint against them to the Chief Minister, Home Minister, Police Commissioner and Assistant Commissioner of Police on 17.02.1999. Again they tried to trouble her and therefore she had instituted O.S.No.1384/1999 against those Police Inspectors in which court had granted permanent injunction against them. Later one Vijayalatha Singhvi filed O.S.No.8409/2000 before the Civil Court seeking permanent injunction against Rudramma. Rudramma personally fought the 8 O.S.No.9243/2014 litigation and the suit came to be dismissed. RFA No.1694/2010 filed against Rudramma before the Hon'ble High Court also dismissed. A Writ Petition No.55215/2013 was also filed by Vijayalatha Singhvi against Rudramma challenging the allotment of the site which also dismissed by the Hon'ble High Court.
6. The defendant has pleaded that Rudramma had actively fought several legal battles all through her life and she was well aware of the registration process and court proceedings and therefore she cannot be treated as an illiterate lady. She was mentally sound and physically fit and she could make out what is good and bad. She had general health ailments. After 1978 onwards, she was never hospitalised for any serious ailments and she died in Bangalore on 23.07.2012. She had even appeared before the Additional District Registrar, Bangalore Urban District on 15.04.2009 and obtained document in respect of 'B' schedule property which came to be registered on 23.09.2008.
7. In so far as the financial and economic conditions of the parties are concerned, she has pleaded that her father executed a WILL dated 08.10.1973 in favour of the plaintiff and bequeathed several immovable properties and gifted several immovable properties through the gift deed dated 17.05.1972. It is also contended that the plaintiff's son Bhaskar and his wife Smt.Yashodha have also acquired various properties. The 9 O.S.No.9243/2014 plaintiff was the owner of immovable property bearing No.202 at Cubbon Pet Main Road and constructed a commercial residential building wherein her son is running a provisional store. The son of plaintiff and his wife have purchased valuable property on 17.01.2013 bearing No.45 at Raghavendra Block, Srinagar, Bengaluru consisting of ground, floor, first floor and second floor and it is let out and her son is getting good rent from it. Therefore, the plaintiff and her family members are having several properties and hence the alleged poor economic condition of the plaintiff is denied as totally false.
8. On the basis of the above pleadings, this Court has framed the following issues and additional issue No.1:-
1) Whether the plaintiffs prove that late Rudramma did not execute the gift deeds dtd:15.04.2009 and 28.10.2010 on her own volition knowing and understanding its contents and they are obtained by committing fraud on late Rudramma?
2) Does Court fee paid is insufficient?
3) Does suit is barred by limitation?
4) Does plaintiff proves that she is entitled for partition & separate possession of the suit schedule 'A' & 'B' properties to the extent of half share by meters and bounds?
5) What order or decree ?
10 O.S.No.9243/2014Addl. Issue
1) Whether the defendant proves her absolute right over the suit schedule property by virtue of the disputed gift deed dated 15.04.2009 and 28.10.2010 with respect to suit schedule property?
9. During the pendency of the suit, the plaintiff died and her LRs are brought on record as plaintiff No.1(a) & (b). In support of the case of the plaintiff, plaintiff No.1(a) Bhaskar is examined as P.W.1 and got marked Ex.P.1 to 7 documents. During the course of cross-examination of P.W.1, Ex.D.1 to 9 documents are marked on behalf of the defendant. The defendant is examined as D.W.1 and two witnesses viz., S. Basavaraj and C. Nagaraj are examined as D.W.2 & 3 respectively and got marked documents Ex.D.10 to 103.
10. Heard the arguments. Learned counsel appearing for defendant has also filed notes of arguments.
11. Finding of this Court on the above issues and addl. Issue are as hereunder:-
Issue No.1 : In the negative
Issue No.2 : In the affirmative
Issue No.3 : In the affirmative
Issue No.4 : In the negative
Addl. Issue No.1 : In the affirmative
11 O.S.No.9243/2014
Issue No.5 : As per final order, for the following:
REASONS
12. Issue No.1 and Additional Issue No.1:- The plaintiff has instituted this suit seeking the relief of partition and her separate half share in item No.1 & 2 of the schedule 'A' and 'B' properties contending that these properties being possessed by her mother Rudramma, she died intestate on 23.06.2012, the gift deeds dated 15.04.2009 and 28.10.2010 registered in favour of the defendant are obtained by misrepresentation, undue influence and fraud. The defendant has asserted the execution of the registered gift deeds dated 15.04.2009 and 28.10.2010 and contended that when their mother Rudramma has gifted these two items in favour of the defendant through the aforesaid gift deeds, plaintiff is not entitled for share in the suit schedule properties.
13. The first legal contention raised on behalf of the defendant is that when their mother Rudramma had executed gift deeds dated 15.04.2009 and 28.10.2010 without seeking declaratory relief in respect of those two gift deeds, the plaintiff cannot maintain the suit for partition. Learned counsel appearing for the plaintiff has placed reliance on the Division Bench judgement of our Hon'ble High Court rendered in the case of Ganapati Santaram Bhosale and another v/s Ramachandra Subbarao Kulkarni and others 1985 AIR (Karnataka) 143 12 O.S.No.9243/2014 contended that in a suit for partition, it is sufficient if a prayer is made for separate possession of the property and no relief is required to be sought for cancellation or setting aside those documents. But, it was a case wherein suit for partition was filed in respect of joint family properties. In an ancestral or joint family property, every member of the family will have a pre-existing right over the property. Therefore, in respect of a joint family or ancestral property, even if a co-sharer executes a sale deed or any other registered deed only his share will be conveyed and it will not affect the share of the party who seeks partition. Therefore, if a suit is filed in respect of joint family or ancestral property, there is no need to seek declaratory relief in respect of the deeds executed in respect of that property. But, in the present case, the facts are totally different. It is an admitted fact that suit schedule properties were the self-acquired properties of late Rudramma, who is the mother of deceased plaintiff Gowramma and defendant. Therefore, the plaintiff had no pre-existing right over the suit schedule properties. In a case of this nature, the execution the gift deed by Rudramma is established, plaintiff cannot claim share in the suit schedule properties. The plaintiff can maintain a suit for partition only if the court comes to the conclusion that Rudramma had not executed the gift deeds. Therefore, when the plaintiff was fully aware about these gift 13 O.S.No.9243/2014 deeds and referred those documents in the plaint, the plaintiff should have sought a declaratory relief in respect of aforesaid two gift deeds. The plaintiff has not even sought the relief that those gift deeds are not binding on her share. Therefore, in the absence of seeking declaratory relief in respect of these two gift deeds mere suit for partition itself is not maintainable.
14. In order to substantiate the execution of the gift deeds by Rudramma dated 15.04.2009 and 28.10.2010, the defendant has produced it as per Ex.D98 & 99. One of the contention raised on behalf of the plaintiff is that these documents did not fulfill the mandatory requirement of attestation as required under Section 122 & 123 of Transfer of Property Act, 1882. Section 122 of Transfer of Property Act 1882 provides that gift is a transfer of property executed voluntarily without consideration by one person called donor to another called donee and accepted by or on behalf of donee. Section 123 of the Act prescribes that the gift deed must be a registered document signed by or on behalf of the donor and attested by at-least two witnesses. Ex.D98 and 99 are admittedly registered documents. It is also not in dispute that the defendant being donee has accepted this gift by signing these documents. Though it is contended on behalf of the plaintiff that the requirement of attestation is not fulfilled, both these gift deeds reflects that the attestation by two witnesses. In fact, Ex.D98 is 14 O.S.No.9243/2014 attested by three witnesses and Ex.D 99 is attested by two witnesses. Therefore, the legal requirements in respect of a gift deed is fulfilled in the gift deeds dated 15.04.2009 and 28.10.2010.
15. Valid execution of these two gifts are also seriously disputed by the plaintiff on multiple grounds. Execution of the gift deed consists of both physical act of execution of the document as well as voluntariness. In so far as physical act of execution of these two gift deeds by Rudramma is concerned, the plaintiffs have not specifically denied it. In fact, in para No.13 of the plaint, the plaintiff has stated that when Rudramma came to short stay to the house of the defendant, defendant managed to obtain a gift deeds dated 15.04.2009 and 28.10.2010. Again in para No.18 of the plaint, the plaintiff has stated that when Rudramma executed the said gift deeds dated 15.04.2009 and 28.10.2010, she was aged 76 years and she had age-related ailments. Therefore, though in para-39 of the plaint, it is pleaded that it is really doubtful whether LTMs found in the said two gift deeds are really that of said later Rudramma, while considering the plaint as a whole and the evidence, the physical act of execution of these two gift deeds by Rudramma is not specifically denied by the plaintiffs. Apart from that, these two documents consists of the photograph of Rudramma as a donor. P.W.1 who is examined 15 O.S.No.9243/2014 before the court has also categorically admitted the photograph of late Rudramma in those gift deeds. He has also admitted that the LTMs found therein are LTMs of late Rudramma. Therefore, the physical act of execution of gift deeds before the Sub Registrar is admitted and established.
16. Learned counsels appearing for both the parties relied upon various decisions on the question of burden of proof. Learned counsel appearing for the plaintiff strongly placed reliance on the decision of Hon'ble Supreme Court rendered in the case of Keshav and others v/s Gian Chand and another 2022 AIR (SC) 678, Krishna Mohan Kul alias Nani Charan Kul and another v/s Pratima Maity and others (2004)9 SCC 468 and other judgments and contended that the burden is on the defendant to prove the valid execution of the gift deeds. On the other hand, learned counsel appearing for the defendant has also relied on several decisions including the decision of the Hon'ble Supreme Court rendered in the case of Prem Singh and others v/ s Birbal and others 2006 SC 3608, Union of India v/s M/s Chaturbhai M Patel and another AIR 1976 SC 712, Jagdish Chander v/s Satish Chander (2019)12 SCC 327 and other decisions to contend that when the gift deed is registered before the Sub Registrar, there will be a presumption in favour of the valid execution and therefore the burden is completely on the 16 O.S.No.9243/2014 plaintiffs to establish that execution is tainted with fraud, misrepresentation, etc. Learned counsel appearing for the defendant also contented that the plaintiff must establish the misrepresentation and fraud or undue influence by pleading as per order VI rule 4 CPC and the plaintiffs have failed to prove that those gift deeds were obtained by undue influence or by playing fraud.
17. On a survey of various decisions of the Hon'ble Supreme Court, now it is well settled law that normally when fraud, misrepresentation or undue influence is alleged by one party in execution of a document, the burden is on the person who alleges fraud, undue influence or misrepresentation with a specific pleading as required under order VI rule 4 CPC and the degree of proof required to prove these allegations is high. But, there are some exceptions if a party is able to show that the executant was in fiduciary relationship with the beneficiary or the beneficiary was in a possession of active confidence. In such circumstances, the burden is on the person who claims that the disputed document is executed voluntarily by the executant on her free will and volition. This legal position is recently reiterated by the Hon'ble Supreme Court in the case of Keshav and others v/s Gian Chand and another 2022 AIR (SC) 678 by relying upon its previous decision rendered in the case of Krishna Mohan Kul 17 O.S.No.9243/2014 alias Nani Charan Kul and another v/s Pratima Maity and others 2004(9) SCC 468. In this regard, in the case of Krishna Mohan Kul referred to above the Hon'ble Supreme Court has observed as hererender:-
"When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence' of fraud, misrepresentation or undue influence is upon the person, in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with jealously all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and 18 O.S.No.9243/2014 reasonable, that no advantage has been taken of his position. This principle has been engrained in Section 111 of the Indian Evidence Act, 1872 (in short the 'Evidence Act'). The rule here laid down is in accordance with a principle long acknowledged and administered in Courts of Equity in England and America. This principle is that he who bargains in a matter of advantage with a person who places a confidence in him is bound to show that a proper and reasonable use has been made of that confidence. The transaction is not necessarily void pso facto, nor is it necessary or those who-impeach it to establish that there has been fraud or imposition, but the burden of establishing its perfect fairness, adequacy and equity is cast upon the person in whom the confidence has beep reposed. The rule applies equally to all persons standing in confidential relations with each other. Agents, trustees, executors, administrators, auctioneers and other have been held to fall within the rule. The Section requires that the party on whom the burden of proof is laid should have been in a position of active confidence".
18. In view of the above legal position, it is clear that if a donee of the WILL was in a position of active confidence and in a dominating position having fiduciary relationship, the donee is required to show before the court that the gift deed was executed perfectly, fair and with free will and volition of the donor. In the 19 O.S.No.9243/2014 light of above legal position, the court is required to consider the present factual scenario of the case.
19. As observed above, in the normal circumstances, the burden will be on the plaintiff to show that fraud or undue influence was exercised by the defendant in getting the aforesaid gift deeds by Rudramma. This burden can be fastened against the defendant only if the plaintiff is able to show that the defendant was in active confidence with late Rudramma or she was in a dominating position over her will of Rudramma as she was in a fiduciary relationship, which had forced late Rudramma to execute these documents without her free will and volition. But, in the entire plaint or in the evidence, the plaintiffs have not pleaded at that the defendant was in active confidence with late Rudramma. The plaintiffs have not even pleaded that the defendant was in a position to dominate the will of Rudramma. It is not even contended by the plaintiffs that Rudramma was depending on the defendant or her husband. It is not even contended by the plaintiffs that any other circumstances compelled Rudramma to fix her thumb impression to these gift deeds without voluteriness. On the other hand, plaintiffs have pleaded that Rudramma was residing independently at Sulibele village. They have further contended that in order to maintain equal distance between her two daughters, Rudramma used to 20 O.S.No.9243/2014 come to houses of both the daughters only for short stay. It is specifically pleaded in para No.13 of the plaint that when Rudramma came for a short stay in the house of defendant, the defendant had managed to obtain the gift deeds. The very pleading of the plaintiff shows that late Rudramma was not in active confidence with the defendant or defendant was not in a position to dominate the will of the executant Rudramma. Such being the case, in the present case, the court cannot expect the defendant to discharge complete burden to prove that the gift deeds were executed with free volition of Rudramma.
20. Learned counsel appearing for the plaintiff relied upon various decisions and contended that examination of the attesting witness is mandatory to prove the execution of the gift deed. In this regard, learned counsel appearing for the plaintiff has relied upon the decision of the Hon'ble Supreme Court in the case of Rosammal Issetheenammal Fernandez (dead) by Lrs v/s Joosa Mariyan Fernandez 2000 AIR (SC) 2857 and also the decision of K. Laxmanan v/s Thekkayil Padmini and others 2009 AIR (SC)
951. On the other hand, learned counsel appearing for the defendant placed reliance on the decisions rendered in the case of Govindbhai Chhotabhai Patel vs Patel Ramanbhai Mathurbhai AIR 2019 SUPREME COURT 4822 and other decisions contending that examination of the attesting witness is not 21 O.S.No.9243/2014 mandatory unless the gift deed is specifically denied. Section 68 of Indian Evidence Act makes it clear that a document which requires compulsory attestation shall not be used as evidence until one attesting witness at least has been called for, for the purpose of proving its execution. The proviso makes it clear that it shall not be necessary to call the attesting witness in proof of the execution of the document, not being the WILL which is registered unless its execution by the person by whom it proposed to have been executed is specifically denied. In the present case, the executant of the gift deed has not denied the gift deeds. Therefore, the defendant need not necessarily examine the attesting witnesses. Still defendant has examined the attesting witnesses.
21. In order to prove the execution and attestation, the defendant has examined two witnesses by name Sri S.Basavaraj as DW2 and one C.Nagaraj as DW3. DW2 is the attesting witness to Ex.D98 gift deed dated 15.04.2009. He has testified with regard to the execution of Ex.D98 gift deed and his attestation made to it. DW3 C. Nagaraj is the attesting witness to Ex.D99 gift deed dated 28.10.2010. Both these witnesses have stated that the donor Rudramma had fixed her thumb impression to these documents in their presence and these witnesses have attested it. There are no reasons to distrust their testimony. In the 22 O.S.No.9243/2014 entire evidence of DW2 & 3, no suggestion is made on behalf of the plaintiff that Rudramma did not execute these gift deeds. It is not even disputed that Rudramma was very much present before the office of Registrar and affixed her LTM to both the gift deeds. The presence of DW2 & 3 at the time of execution of the gift deeds and their attestation is also not denied. It is not even suggested that at the time of execution of these two gift deeds, physical or mental status of Rudrama was not stable. It is not even suggested to DW2 & 3 that these gift deeds were not executed by Rudramma on her free will and volition.
22. The next important point urged on behalf of the plaintiffs is that late Rudramma was illiterate and she had no worldly-wise and therefore, she had affixed her LTM to the gift deeds without knowing its contents. But, the defendant has produced series of documents to show that right from the year 1978, even until the year 2009, she had executed several documents and dealt with the property. It is the contention of the defendant that Rudramma and other revenue site owners in Sy.No.111 registered an Association by name Bapuji Nagar Attiguppe Site Owners Association and Rudramma was one of the member of the said Association by paying the membership charges. It is further contended that Rudramma made an application to BDA seeking reconveying the sites in her favour 23 O.S.No.9243/2014 and therefore, two sites were reconvened in her favour by executing a registered lease-cum-sale agreement dated 01.01.1983, allotment letter dated 16.09.1982, possession certificate dated 30.04.1983, khatha dated 26.05.1983 and registered sale deed dated 23.09.2008. It is also contended that she had leased out suit 'A' schedule property and since the tenant did not vacate the premises she had filed eviction petition under Karnataka Rent Control Act before Principal Munsiff, Bengaluru and during the pendency of the said petition, her husband Sri D. Chennaveeradevarappa died on 19.12.1976 and she continued the proceedings. It is also brought on record that later Rudramma had filed an application under Section 29(4) of House Rent Control Act for recovery of the arrears of rent wherein the tenant took up the matter to the Hon'ble High Court by filing CRP No.1071/1975 and later Rudramma filed Ex.Case No.237/1978 and took possession of suit 'A' schedule property through court proceedings on 13.07.1978. it is also brought on record that Rudramma had intimated the vacancy of the premises to Rent Controller and requested to allot the same to her and when her request was rejected and allotted it to a third party by name Mohamed Ammeuddin, she filed HRC No.169/1978-79 before the Deputy Commissioner and succeeded in it. It is also brought on record that the vendor of Rudramma instituted suit for 24 O.S.No.9243/2014 declaration in O.S.No.1105/1985, challenging the allotment of site. Rudramma fought the litigation and the suit was dismissed. It is further brought on record that one Dasharath Rao and Chandraiah, a Police Inspector of Vijayanagar interfered with her possession and therefore, she filed a complaint against them to the Chief Minister, Home Minister, Police Commissioner and Assistant Commissioner of Police on 17.02.1999. Again they tried to trouble her and therefore she had instituted O.S.No.1384/1999 against them including a Police Inspector in which court had granted permanent injunction against them. It is further brought on record that later one Vijayalatha Singhvi filed O.S.No.8409/2000 before the Civil Court seeking permanent injunction against Rudramma. Rudramma personally fought the litigation and the suit came to be dismissed and RFA No.1694/2010 filed against Rudramma before the Hon'ble High Court also dismissed. It is also brought on record that a Writ Petition No.55215/2013 was also filed by Vijayalatha Singhvi against Rudramma challenging the allotment of the site which also dismissed by the Hon'ble High Court.
23. The defendant has pleaded that Rudramma had actively fought several legal battles all through her life and she was well aware of the registration process and court proceedings and therefore she cannot be treated as an illiterate lady. It is 25 O.S.No.9243/2014 contended that she was mentally sound and physically fit and she could make out what is good and bad. She had general health ailments and after the year 1978, she was never hospitalised for any serious ailments and she died in Bangalore on 23.07.2012. It is also evident that Rudramma had even appeared before the Additional District Registrar, Bangalore Urban District on 15.04.2009 and obtained document in respect of 'B' schedule property which came to be registered on 23.09.2008. The documents produced at Ex.D3, Ex.D11, Ex.D12, Ex.D13 to 18, Ex.D35 to 37, Ex.D48 to 88 and other documents clearly substantiates the stand of defendant. All these documents clearly reflects that Rudramma had independently made several representations to several authorities in connection with her rights and personally prosecuted several suits and defended several suits. It also shows that she had represented herself both revenue authorities as well as quasi-judicial authorities. It also shows that she had even given evidence before the judicial and quasi-judicial authorities. It is also important to note that she had even filed suit against the Police Inspector by name Chandraiah for injunction and fought against them also and succeeded. All these proceedings clearly shows that later Rudramma was worldly-wise and she was capable of understanding the nature and effect of the documents and proceedings.
26 O.S.No.9243/2014
24. One of the contention raised on behalf of the plaintiff is that at the time of execution of these gift deeds, Rudramma was aged 76 years and her physical and mental status was feeble. There is no presumption that the physical or mental status of aged people cannot be stable. But, when it is admitted that she was aged 76 years, there is a duty on the part of the court to examine this contention carefully. In this regard, it is admitted fact that though Rudramma had some age-old ailments, she was never admitted to the hospital or availed treatment of any kind either for any serious physical disease or any type of mental disease. It is admitted fact that when the sale deed was executed in respect of suit 'B' schedule property as per Ex.D.100 Rudramma had personally appeared before the Sub Registrar on 23.09.2008. Even during the evidence of PW1, PW1 has not stated anything about the mental instability of Rudramma.
25. One of the contention raised on behalf of the plaintiffs is that when Rudramma had executed gift deeds, there were no reasons to exclude the deceased plaintiff and therefore it creates suspicion. But, it is brought on record that five landed properties and two house properties were given to deceased plaintiff on 07.05.1972 as per Ex.D4 gift deed. Further, the contention of the defendant that three properties were given to deceased plaintiff through a WILL is not specifically denied by PW1 during his 27 O.S.No.9243/2014 cross-examination. It is also brought on record that deceased plaintiff had purchased property No.202 consisting of 4 floor building. It is also brought on record that the defendant and her husband taken care of Rudramma during her old age. It is further brought on record and admitted by PW1 that Rudramma died in suit 'A' schedule property. PW1 has also admitted that the defendant has been in possession of suit 'A' schedule property and she is residing in one portion and let out three houses for rent.
26. Learned counsel appearing for the plaintiffs placed reliance on Section 92 of Indian Evidence Act and contended that when the documents do not disclose any reasons for exclusion of the deceased plaintiff, the defendant cannot lead oral evidence in support of her defence in respect of the terms of the document. But, even in Ex.D98 and 99, Rudramma the donor has specifically noted that she lost her husband in the year 1976 and since then the defendant was taking care of her from the year 1976. Such being the recital of these two documents, it cannot be said that there are no reasons to exclude the deceased plaintiff while executing these two gift deeds, more particularly seven items of properties were already given to deceased plaintiff as per Ex.D4 gift deed. Hence, this contention of the plaintiffs cannot be accepted.
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27. Learned counsel appearing for the plaintiffs by relying upon the various decisions including the decision of the Hon'ble Supreme Court rendered in the case of Badri Naryanan v/s Rajabagyathammal 1996(7) SCC 101 has contended that when an illiterate person had affixed the thumb depression to a document, unless it is established that the recitals in the documents were read out and explained to that person, she cannot be deemed to have assented to it. There is no dispute with regard to this legal position. But, in both these gift deeds, in page No.4, the Sub-Registrar has recorded a specific note that the executant has admitted its execution as "ಬರೆದು ಕೊಟ್ಟಿರುವುದಾಗಿ ಒಪ್ಪಿರುತ್ತಾ ರೆ". The above note of the Sub Registrar clearly pre- supposes that the contents of the documents were read over and explained to the executant and she has admitted it. When the Sub Registrar has made such a note, it carries to presumptive value and it is not the contention of the plaintiffs that such a note made by the Sub Registrar was without reading and explaining the contents of these documents. Therefore, this court is unable to accept this contention also.
28. In view of the reasons stated above, in the considered opinion of this court, the defendant has able to show that late Rudramma had executed Ex.P1 & 2 gift deeds in favour of the defendant voluntarily with free will and knowing its contents with 29 O.S.No.9243/2014 an intention to gift these suit schedule properties in favour of the defendant. Though the plaintiffs have taken up a contention that Rudramma had affixed her LTM to these documents without knowing its contents and her physical and mental state was not stable, this is not probablised. Therefore, when it is established that the suit schedule properties are the self-acquired properties of Rudramma, when she had intended to gift it to the defendant, court cannot reject her these two documents without valid and cogent reasons. Under these circumstances, issue No.1 is answered in the negative and additional issue No.1 is answered in the affirmative.
29. Issue No.2:- This is a suit filed for partition by the plaintiff contending that the plaintiff and defendant are in joint possession and enjoyment of the suit schedule properties. But, in the cross examination of PW1 dated 24.03.2023, PW1 in para No.23 of the cross-examination specifically admitted that the suit properties are in the possession of the defendant and the revenue records are also transferred in her name. PW1 in the cross-examination dated 18.08.2021 has also admitted that the defendant is staying in suit 'A' schedule property and she has also let out three houses for rent. This is suppressed by the plaintiffs in the plaint. It is true that mere physical possession of a co-owner alone is not a ground to reject the constructive 30 O.S.No.9243/2014 possession of the other co-owner. But, in the present case, the possession of the defendant was subsequent to the execution of the registered gift deeds and change of khatha. The plaintiff had no pre-existing right over the suit schedule property. The property was the self acquired property of her mother and she had gifted it to the defendant. Therefore, the plaintiff should have sought the relief of declaration in respect of the gift deeds and should have paid appropriate court fee for seeking for possession under Section 24(b) of Karnataka Court Fee and Suit Valuation Act. In view of this, the court holds that the court fee paid by the plaintiff is not proper. Accordingly issue No.2 is answered in the negative.
30. Issue No.3:- The defendant has also taken up a contention that the suit is barred by limitation. On the other hand, the plaintiff has taken up a contention that the plaintiff came to know about these gift deeds only in the year 2013 and therefore filed the suit. Though the gift deeds are registered documents, the deceased plaintiff or the present plaintiffs were not parties to it. Therefore, if they were unaware about these gift deeds, it cannot be said that suit is barred by limitation. Therefore, issue No.3 is answered in the negative.
31. Issues No.4 & 5:- In view of the answer given to issue No.1 against the plaintiff and additional issue No.1 in favour of the defendant, the plaintiff is not entitled to seek partition over the suit 31 O.S.No.9243/2014 schedule property and therefore the plaintiffs are not entitled for any reliefs. Consequently, issue No.4 is answered in the negative and the following order is passed:-
ORDER Suit is dismissed with costs.
Draw decree accordingly.
(Judgment prepared through Speech to Text App with the assistance of Senior Sheristedar, carried out corrections, print out taken and then pronounced in the Open Court on this the 3rd day of May, 2025) (Vijaya Kumar Rai) X Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiffs:
PW.1 : Bhaskara B List of documents exhibited for plaintiffs: Ex.P1 & 2: RTI copy of gift deed dtd.15.04.2009 & 28.10.2010 Ex.P3 : RTI copy of Khatha extract Ex.P4 : RTI copy of Khatha certificate Ex.P5 : RTI copy of Tax paid receipt Ex.P6 : RTI copy of Encumbrance certificate Ex.P7 : Certified copy of Khatha extract List of witnesses examined for the defendants: D.W1 : C. Shivamma D.W2 : S. Basavaraj D.W3 : C. Nagaraj List of documents exhibited for defendants: Ex.D1 : C/c of GPA Ex.D2 : C/c of WS of Gowramma in OS 4688/1987 Ex.D3 : C/c of WS of Rudramma in OS 4688/1987 32 O.S.No.9243/2014 Ex.D4 : Copy of gift deed dated 07.05.1972 Ex.D5 : Copy of sale deed dated 17.01.2013 Ex.D6 : C/c of plaint in OS 107/2022 Ex.D7 : C/c of deposition of PW1 in OS 4688/1987 Ex.D8 & 9: khatha change letters Ex.D10 : C/c of sale deed dated 06.09.1967 Ex.D11 : Application dated 12.12.1976 Ex.D12 : C/c of interim stay order in HRC.A.No.169/1978-79 Ex.D13 : Copying application in HRC.A.No.169/1978-79 Ex.D14 : Office copy of letter dated 14.09.1978 Ex.D15 : Endorsement dated 18.06.1980 Ex.D16 : Office copy of letter dated 06.09.1984 Ex.D17 : Building licence Ex.D18 : Notice dated 24.05.1999 Ex.D19 & 20 : Khatha extract & khatha certificate Ex.D21 & 22 : Khatha certificate & khatha extracts Ex.D23 : C/c of lease-cum-sale agreement dtd:08.08.1962 Ex.D24 : C/c of layout plan Ex.D25 : C/c of notice dated 30.11.1975 Ex.D26 & 27: Two receipts Ex.D28 : C/c of allotment letter dated 16.09.1982 Ex.D29 : C/c of lease cum sale deed dated 27.11.1982 Ex.D30 : C/c of possession certificate dated 30.04.1983 Ex.D31 : C/c of khatha certificate Ex.D32 to 34: Tax paid receipts Ex.D35 : C/c of plaint in OS 1105/1985 Ex.D36 : C/c of WS Ex.D37 : C/c of order sheet Ex.D38 : C/c of khatha certificate Ex.D39 : C/c of khatha extract Ex.D40 to 47: Tax paid receipts 33 O.S.No.9243/2014 Ex.D48 & 49: Complaints dated 14.02.1999 Ex.D50 : Endorsement Ex.D51 : Representation dated 17.02.1999 Ex.D52 : Representation dated 16.04.1999 Ex.D53 : C/c of order sheet in Crl.Misc.413/1999 Ex.D54 : C/c of anticipatory bail application in Crl.Mis.413/99 Ex.D55 : C/c of objections Ex.D56 : C/c of order dated 27.02.1999 Ex.D57 : C/c of plaint in OS 1384/1999 Ex.D58 : C/c of amended plaint Ex.D59 : C/c of order sheet with judgment in OS 1384/1999 Ex.D60 : C/c of decree Ex.D61 : C/c of SPA Ex.D62 : C/c of plaint in OS 8409/2000 Ex.D63 : C/c of WS Ex.D64 : C/c of judgment dated 01.07.2010 Ex.D65 : Intimation letter dated 27.02.2001 Ex.D66 : C/c of memorandum of appeal in RFA 1694/2010 Ex.D67 : C/c of order sheet Ex.D68 : C/c of order passed in RFA dated 10.04.2012 Ex.D69 : C/c of WP No.55215/2013 Ex.D70 : C/c of impleading application in WP Ex.D71 : C/c of order sheet in WP Ex.D72 & 73: Khatha certificate and khatha extract Ex.D74 : Death extract of father of DW1 Ex.D75 : Request letter dated 28.01.1995 Ex.D76 : Notice dated 25.07.2002 Ex.D77 : Senior citizen card of mother of DW1 Ex.D78 : Medical test report dated 05.01.2004 Ex.D79 to 81: Lab report, urine report along with x-ray Ex.D82 : Scanning report dated 13.03.2009 34 O.S.No.9243/2014 Ex.D83 : Death extract of mother of DW1 Ex.D84 : C/c of plaint in OS 1148/1985 Ex.D85 : C/c of compromise petition in the suit Ex.D86 : C/c of sale certificate Ex.D87 & 88: C/c of judgment and decree in OS 4688/1987 Ex.D89 : C/c of WILL dated 08.10.1973 Ex.D90 : Letter dated 26.02.2016 Ex.D91 : Khatha extract Ex.D92 to 96: Objections dated 13.12.2021 Ex.D97 : Endorsement dated 27.01.2022 Ex.D98 & 99: C/c of gift deeds dated 15.04.2009 & 28.10.2010 Ex.D98(a) & (b): Signatures of DW2 Ex.D98(c) : Signature of Chandru Ex.D98(d) : Signature of Puttaswamy Ex.D98(e) : Signature of Chandru Ex.D98(f) : Signature of Shivamma Ex.D99(a) & (b): Signatures of DW3 Ex.D99(c) & (f): Signatures of Avinash Ex.D100 : C/c of sale deed dated 23.09.2008 Ex.D101 & 102 : Computarized tax paid receipts Ex.D103 : Certificate u/s 65B of Indian Evidence Act X Addl. City Civil & Sessions Judge, Bangalore.Digitally signed
VIJAYA by VIJAYA
KUMAR RAI B
KUMAR Date:
RAI B 2025.05.05
11:16:01 +0530