Bangalore District Court
Umesh Naik P vs Puttalakshmamma on 23 March, 2026
KABC010068592020
Govt. of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
Form No.9(Civil)
Title Sheet for
Judgment in suits
(R.P.91)
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY
(CCCH.11)
DATED THIS THE 23rd DAY OF MARCH, 2026
PRESENT: SRI GANAPATI GURUSIDDA BADAMI,
B.A. LL.B.(Spl)
(Name of the Presiding Judge)
O.S.No.1794/2020
PLAINTIFF/S : Sri.P.Umesh Naik,
S/o. Late Peerappa,
Aged about 53 years,
R/at.No.17/1, 2nd Floor,
2nd Cross, Lalbagh Siddapura,
Jayanagar 1st Block,
Bengaluru - 560011.
[By Sri.CSMV Advocate]
/Vs/
DEFENDANT/S 1 Smt.Puttalakshmamma,
W/o.late.Peerappa,
Aged about 72 years,
R/at.No.33, 2nd Cross, 10th Main Road,
Arekempanahalli, Wilson Garden,
BENGALURU - 560027.
2
O.S.No.1794/2020
2 Sri.P.Dinesh Nayak,
S/o.late.Peerappa,
Aged about 49 years,
R/at.No.33, 2nd Cross, 10th Main Road,
Arekempanahalli, Wilson Garden,
BENGALURU - 560027.
3 Smt.P.Hemavathi Bai,
D/o. Late. Peerappa,
Aged about 47 years,
R/at.1st Floor, Near Ex-CMC President,
Mullut House, Opp. Munsiff Court,
Doddaballapura,
Bengaluru District - 561203.
4 Smt.Saroja.P,
D/o. Late. Peerappa,
Aged about 38 years,
R/at. No.59, 5th Cross, 10th Main Road,
Arekempanahalli, Wilson Garden,
Bengaluru - 560027.
5 Smt.Saraswathi.P,
D/o. late. Peerappa,
Aged about 38 years,
R/at. No.59, 5th Cross, 10th Main Road,
Arekempanhalli, Wilson Garden,
BENGALURU - 560027.
(D-1 to D-3 By Sri.M.D. Advocate)
(D-4, 5 - By Sri.S.G. Advocate)
Date of Institution of the suit : 06.03.2020
Nature of the Suit : Partition
Date of commencement of : 29.10.2021
recording of evidence
Date on which the Judgment : 23.03.2026
was pronounced
3
O.S.No.1794/2020
Total Duration Year/s Month/s Day/s
6 0 17
(GANAPATI GURUSIDDA BADAMI)
VI ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
Plaintiff has filed this suit against the defendants seeking the relief of partition and separate possession of his share in the suit properties, relief of declaration that the gift deeds dated 12-12-2013, 19-10-2015, and 12-10-2017 as null and void and not binding on him.
2. It is averred in the plaint that, the plaintiff is the eldest son of Late Peerappa and defendant No.1 is his mother and defendant No.2 is his younger brother. The defendant No.3 to 5 are sisters of plaintiff. The plaintiff and defendant have constituted Hindu Joint Family. He has shown genealogical tree in para No.3 of the plaint.
4
O.S.No.1794/2020
3. Late Peerappa was working in KPSC and during his lifetime, he had purchased a site bearing No.33, 2 nd Cross, 10th Main Road, Arekempanhalli, Wilson Garden, Bangalore, measuring 30 feet x 40 feet on 19-06-1978, registered in the name of defendant No.1 in the office of Sub-Registrar, Jayanagar, Bangalore in Book No.1, Volume No.385 at Page No.24 and 23, vide document No.980/1978-79.
4. He was Kartha and manager of the family and he was residing along with plaintiffs and defendants, and he constructed a building consisting of a ground floor and first floor house on the said site which is item No.1 of the suit schedule.
5. On 14-10-1981, Peerappa purchased the property bearing No.59, 10th Main Road, 5th Cross, Arekempanhalli, Wilson Garden, Bangalore, measuring 40 x 26 + 30/2 = 1120 square feet from Chikkellappa S/o Muniswamappa registered in his name vide document No.3129/1981-82, Volume No.632, Book No.1 at page No.233 to 236 in the office of Sub- 5
O.S.No.1794/2020 Registrar, Jayanagar, Bangalore which is the item No.2 of suit schedule. The said site is in the possession of defendant No.1.
6. Late Peerappa was able to allot alleged site in the name of his wife, vide allotment letter dated 24-05-1994 for site bearing No.1203. measuring East-West 9.20 meters and North-South 6.21 meters at Nagarbhavi 2nd Stage, Bangalore. After allotment, Peerappa paid amount fixed by the BDA for registration of site on behalf of his wife and BDA registered the site in the name of defendant No.1, vide document bearing No.15607/2021-22, Book No.1, Volume No.470 at page No.6 to 9 dated 26-02-2022, in the office of Sub- Registrar, Bangalore which is item No.3 of suit schedule.
7. Late Peerappa and his brother Champla Nayak were in joint possession and enjoyment of their ancestral agricultural property measuring 4 acres in survey No.251 at Kali Devapura village, Kodigenahalli, Madhugiri Taluk, Tumkur district.
6
O.S.No.1794/2020
8. Late Peerappa died intestate on 19-04-2002. After the death of Peerappa, the defendant No.1, as a legal heir of deceased Peerappa partitioned ancestral agricultural property equally with Bheema Nayak who is the legal heir of Late Champla Nayak, under the registered partition deed, and defendant No.1 has got her share measuring 2 acres in the agricultural land bearing survey No.251 of Kali Devapura village, Kodigenahalli, Madhugiri Taluk, Tumkur district, vide document bearing No. MDG-1- 01348/2016-17 CD No. MDGD 194 dated 17.02.2016 in the office of Sub-Registrar, Mudhugiri which is item No.4 of suit schedule. The original documents pertaining to this property are with defendant No.1.
9. The defendant Nos. 2 to 5 are depending and dancing to the tune of defendant No.1. After the death of Peerappa, all the defendants were completely changed their attitude towards Plaintiff and his family and developed hatred attitude towards him and his family. The defendant No.1 was not in good terms with the wife of the plaintiff and she was 7 O.S.No.1794/2020 harassing to send her out of the house and did not show love and affection on the children of plaintiff and acted detrimental to the right and interest of the plaintiff.
10. When the situation was out of control, the plaintiff started to demand his share in the joint family properties and defendant No.1 assured to give his legitimate share by metes and bounds. The plaintiff and his family were residing jointly along with defendant No.1 and 2. The defendant No.1 went on giving false promise of giving his share in the joint family properties. The defendant No.1, 3 to 5 were in their deceptive talk enticed the defendant No.1 to transfer entire item No.2 equally in their names.
11. The defendant No.1 without the knowledge of the plaintiff transferred the item No.2 of the suit schedule to the defendant No.3 to 5 under the gift deed, bearing document No. SHR-1-01846/2013-14, CD No. SHRD-36, dated 12-12- 2013, in the office of Sub-Registrar, Jayanagar, Bangalore. At the time of executing the gift deed in favor of defendant No.3 to 5, it was not brought to the knowledge of the plaintiff and 8 O.S.No.1794/2020 his consent was not taken and he has not affixed his signature to the gift deed which is not binding on him.
12. After coming to know about the transfer of item No.2 in favour of defendant No.3 to 5, he was shocked to see that, his name and signature was forged by the defendants as a consenting witness to the gift deed. He demanded the defendant No.1 to cancel the gift deed and also threatened to lodge a police complaint for forging his signature, for which defendant No.1 assured that, she will definitely give his share in the family properties.
13. The defendant No.1 and 2 demolished the house item No.1 and constructed a five-floor building measuring 6,000 square feet. The defendant No.1 and 2 have constructed a huge building and defendant No.1 gifted 50% share in item No.1 of the suit schedule to the defendant No.2 vide the document bearing No. SHR-1-01962/2015-16, Book No.1, CD No. SHRD 56 dated 19-10-2015, in the office of Sub-Registrar Jayanagar, Bangalore, without the consent and knowledge of the plaintiff and said gift deed is not binding on him. 9
O.S.No.1794/2020
14. When he did not get his equal share in the joint family properties, he issued legal notice to the defendants on 23-04- 2016 demanding to cancel the gift deeds and effect partition and said legal notice served upon the defendants.
15. Then the defendant No.1 gifted item No.3 of the suit schedule on 12.10.2017 to the plaintiff. But the plaintiff was not ready to accept this property and he has refused and demanded equal share among entire joint family properties as there was no equal share given to the plaintiff. The defendant No.1 promised to transfer entire 2 acres agricultural land in the item No.4 of the suit schedule and entire 2 nd floor portion constructed in the item No.1 of the suit schedule in the name of plaintiff . But plaintiff is entitled only equal share in all joint family properties. Hence, plaintiff is constrained to file this suit against the defendants.
16. The defendant No.2, 4 and 5 filed their written statement by denying the contents of the plaint. It is contended that vacant site bearing No.33 formed in R.S.No.12 of Arekempanhalli village, Kasaba Hobli Bangalore 10 O.S.No.1794/2020 North Taluk measuring East-West 40 feet and North-South 30 feet, with a total measurement of 1,200 square feet purchased by defendant No.1 from her vendor Chikkellappa S/o Muniswamappa under the sale deed dated 19-06-1978 presented on 21-06-1978, registered vide document No.980/1978-79, Book No.1, volume No.585 at page No.22 and 23 dated 24-07-1978, in the office of Sub-Registrar, Jayanagar, Bangalore. She was put in actual physical possession and enjoyment of the said property on the same day and it is her self-acquired property purchased out of her savings and financial assistance from her parents.
17. The defendant No.1 put up construction of a residential building comprising ground floor portion, and a portion of the same is being utilized for residential purposes by the family of defendant No.1, including her husband Peerappa S/o Bheema Nayak and parties therein. The remaining portion was let out for rent and same was being collected from time to time by the defendant No.1 for her own use and benefits. The khata and municipal records of site No.33, along with the 11 O.S.No.1794/2020 residential building, came to be entered in the name of defendant No.1 and identified as Municipal Khata No.33, property ID No.62-155-33, at Arekempanhalli Village, Ward No.62, Hombegowda Nagar, Bengaluru. The converted vacant site bearing No.59 of Arekempanahalli Village, Bengaluru City Corporation Division No.36, Kasaba Hobli, Bengaluru North Taluk, measuring East-West 40 feet and North-South 26+ 30/2 feet, in all measuring 1,120 square feet came to be purchased by Peerappa S/o Bheemanaik, who is husband of defendant No.1 from Chikkellappa S/o Late Munishamappa under the sale deed dated 14-10-1981, vide document No.3129/1981-82, Book No.1, volume No.632 at page No.233 to 236 dated 17-10-1981 in the office of Sub-Registrar, Jayanagar, Bengaluru.
18. He was put in peaceful possession of the said property on the same day. Subsequently, Peerappa put up residential building comprising ground and first floor and residential houses let out on rent, which was collected by him from time to time till his death. The Khata and municipal records of site 12 O.S.No.1794/2020 No.59 along with residential building came to be entered in the name of Peerappa and municipal Khata No.59 is allotted to the said property.
19. The defendant No.1 was allotted vacant site No.1203, Nagarbhavi 2nd Stage, 9th Block, BDA residential layout, formed by BDA, Bangalore, measuring East-West 9.20 meters and North-South 6.21 meters, in all measuring 57.13 square meters, on an application bearing No.7289 as per allotment letter dated 24-05-1994 and lease-cum-sale agreement dated 28-06-1997 registered vide document No.3691/97-98, Book No.1, before Sub-Registrar, Bangalore North Taluk and actual physical possession of the said property delivered by BDA authorities on 28-06-1997 which is affirmed in the possession certificate dated 17-07-1997. Later on, the sale deed dated 18-02-2002 came to be registered on 26-02-2002 by BDA, represented by Deputy Secretary in favour of defendant No.1 vide document No.15607/2001-2002, Book No.1, volume No.470 at page No.6 to 9, before Additional District Registrar. Bangalore Urban District against receipt of full sale 13 O.S.No.1794/2020 consideration from the defendant No.1 and said property is self acquired property of defendant No.1.
20. The defendant No.1 obtained plan and building license from Rajarajeshwari Nagar Sabha, Bangalore and put up construction of residential house in ground floor measuring 600 square feet of super built-up area from her savings. The Khata and other municipal records of the said site property No.1203 along with residential building came to be registered in her name as property No.1203 Khata No.877 in Rajarajeshwari Nagar Sabha, Bangalore.
21. Late Peerappa died on 19-04-2002. During his lifetime, he performed the marriages of plaintiff and defendant No.3 on 09-05-1996 and marriage expenses were borne from the savings received by defendant No.1 and Peerappa from their respective properties. The marriage of defendant No.2 held on 26-07-2007 and marriage of defendant No.4 held on 10-02- 2011 and marriage of defendant No.5 held on 22.11.2012 and all the expenses are borne by defendant No.1 and 2 from the 14 O.S.No.1794/2020 rental income derived from the item No.1 to 3 properties and professional income of defendant No.2.
22. The defendant No.1 has put up additional construction of the first and second floor measuring the super built-up area of 1200 square feet from her savings and financial assistance received from the defendant No.2 apart from availing housing loan of Rs.10,00,000/- from Vijaya Bank, Residency Road branch, Bangalore. Defendant No.1 had given on rent the residential units in the said property and collected the rent from time to time which was utilized by her for family necessities. The said property comes within BBMP limits, entered in the name of defendant No.1 and assigned BBMP khata No.1203, property No.877/1203 in Ward No.73, Kottigepalya, Laggere Sub-Division, Bangalore. The defendant No.1 with the financial assistance of defendant No.2 repaid and discharged the said housing loan together with interest on 30.05.2017 and obtained a registered discharge deed in their favour.
15
O.S.No.1794/2020
23. The entire property comprising site No.1203 with three floors residential building is item No.3 of the suit schedule. Peerappa had pledged item No.2 of suit schedule towards business loan availed and obtained by M/s Pradeep Packs, a partnership firm in which Peerappa was a partner from M/s Canara Bank, B.T.M Layout Branch, Bangalore. The partnership firm defaulted in repayment of loan and bank filed a foreclosure suit for recovery of the money during O.S.No.7699/1999 before CCH-10.
24. After his death, defendant No.1 and 2 arranged and repaid entire liability of Peerappa which was Rs. 4,50,000/- to the Canara Bank and obtained original title deeds of item No.2, which is well within the knowledge of plaintiff.
25. The plaintiff was running Film Institute and production business of film making. For want of working capital, plaintiff had pestered defendant No.1 to arrange money for by pledging family property and assured to repay the said amount from his income derived from his avocation. After heeding his request, defendant No.1 joined the plaintiff and 16 O.S.No.1794/2020 applied and obtained a term loan of Rs.5,00,000/- on 03-02- 2005 from State Bank of Mysore, Wilson Garden branch, Bangalore, again by pledging title documents of item No.2 of the suit schedule.
26. The plaintiff expressed his inability to repay the said amount in equal installments and called upon defendant No.1 and 2 to do the needful from their side to discharge the term loan and to save the pledged property. The defendant No.1 with the assistance of defendant No.2 has discharged the term loan along with interest on 31-5-2011.
27. After the death of her husband, name of defendant No.1 came to be entered in the municipal records as Khatedar of item No.2. She was desirous of gifting her item No.1 and 3 as well as item No.2 by way of family settlement to her sons and daughters to avoid a possible conflict among the beneficiaries after her lifetime. Accordingly, in concurrence with the plaintiff, defendant No.2, and out of love and affection towards defendant No.3 to 5, she executed conditional gift deed dated 10.10.2013 vide registered document No. SHR-1- 17 O.S.No.1794/2020 01846/2013-14, Book No.1, CD No. SHRD-36, before Sub- Registrar, Shantinagar Bengaluru, in favour of defendants No.3 to 5 allotting them 1/3rd share each in the item No.2.
28. Plaintiff and defendant No.2 have consented for the said gift deed by witnessing to the said document and on the same day, actual physical possession of item No.2 of the suit schedule delivered in favour of defendant No.3 to 5 by the defendant No.1. The Khata and municipal records transferred in the joint names of defendant No.3 to 5 by BBMP authorities. The defendant No.3 to 5 have been collecting the rents derived from the residential units in the item No.2 of the suit schedule and paying property taxes in respect of said property. On the insistence of plaintiff, defendant No.1 was constrained to make and execute consent letter / palupatti dated 29.11.2014 along with plaintiff and defendant No.2 in the presence of attesting witnesses and defendant No.1 agreed to grant and transfer the item No.3 of the suit schedule in favour of plaintiff and also agreed to grant and 18 O.S.No.1794/2020 transfer 1 ½ portion in the item No.1 of the suit schedule in favour of defendant No.2.
29. Subsequently, the defendant No.1 out of love and affection towards defendant No.2 has executed gift deed dated 19.10.2015 vide document bearing No. SHR-1-01962/2015- 16 Book No.1 CD No. SHRD 56 before Sub- Registrar Jayanagar Bangalore and gifted ½ share in her self acquired property bearing Municipal New No.33, Property PID No.62- 155-33 situated at Arekempanhalli, 3 rd Main Road, Ward No.62 Hombegowda Nagar Bangalore measuring East-West:
40 feet and North-South: 30 feet with total measurement of 1200 square feet together with residential building consisting of ground, first floor and retained ½ share for herself in the said property. On the same day, defendant No.2 has been put to physical possession and enjoyment of gifted property. The defendant No.1 has made it clear in the gift deed that, defendant No.2 is entitled to demolish old residential building and construct new residential building in its place.19
O.S.No.1794/2020
30. The defendant No.1 and 2 have availed housing loan under Cent Home Scheme for Rs.50,00,000/- from Central Bank of India, Brigade Road branch, Bangalore obtained on 26.11.2015 and demolished old residential building in the property bearing Municipal No.33 and constructed new residential building in its place comprising ground, first floor to fourth floors by availing the housing loan. The defendant No.2 has also invested his hard earned money from his advocate profession apart from availing overdraft loan of Rs.12,50,000/- from the same Bank on or about 08.11.2016.
31. The defendant No.1 and 2 being joint owners have cleared said loans and they continued to reside in a portion of item No.1 of the suit schedule and they have let out remaining residential units and rents being derived thereon is being utilized for repaying housing loans and other hand loans availed by them at the time of construction of new residential building.
20
O.S.No.1794/2020
32. Item No.4 of the suit schedule is an agricultural land and it is an ancestral property of the parties which has been allotted and granted to the share of Peerappa's descendants who are parties herein duly represented duly represented by the defendant No. as party A and her brother in law Champla Naik as Party B as per partition deed dated 01.07.2016 registered vide document No. MDG-1-01348/2016-17 Book No.1 CD No.MDGD 194 dated 01.07.2016 before Sub- Registrar Madhugiri. Plaintiff has no kind of right, title or interest or possession in respect of item No.1 and 2 of the suit schedule as on the date of the suit. The genealogical tree is admitted by the defendants.
33. Plaintiff has signed in a different fashion to the gift deed at the time of registration with a malafide intention to take undue advantage as a fence sitter at a later point of time. The defendants have no objections to initiate appropriate proceedings to ascertain veracity as to whether signatures and writings found in the gift deed are that of his own or not at his own costs, consequences and risks.
21
O.S.No.1794/2020
34. The allegation that the plaintiff demanded Defendant No. 1 to cancel the gift deed dated 12.12.2013 and threatened to lodge a police complaint alleging forgery of his signature is false, baseless, and devoid of merit. In fact, the plaintiff himself had signed the said document as a witness and was very much present at the time of its execution and registration, and therefore, he is estopped from questioning its validity.
35. It is further submitted that the new residential building consisting of ground, first, second, third, and fourth floors was constructed jointly by Defendant Nos. 1 and 2 after the execution of the gift deed dated 19.10.2015 by Defendant No. 1 in favour of Defendant No. 2, and not vice versa. Defendant No. 2 has acted upon the said gift deed by joining Defendant No.1 in demolishing the old residential structure, jointly availing housing and overdraft loans, investing his own earnings derived from his profession as a practicing advocate, and raising funds from friends and well-wishers for the purpose of construction.
22
O.S.No.1794/2020
36. It is further submitted that Item No. 1 of the suit schedule property, in its original form prior to the execution of the gift deed dated 19.10.2015, was the exclusive, absolute, and self-acquired property of Defendant No. 1. She had clearly expressed her intention, through a consent letter, to settle half portion of the said property in favour of Defendant No. 2. Therefore, there was absolutely no requirement to obtain the plaintiff's signature at the time of execution and registration of the said gift deed.
37. The plaintiff's grievance regarding alleged denial of equal share or inequitable partition in the so-called joint family properties is wholly misconceived, frivolous, and a figment of imagination. Defendant No.1 was under no legal or moral obligation to part with Item Nos.1 and 3 of the suit schedule, as the same are her self-acquired properties. At no point of time were these properties blended with or treated as joint family properties.
23
O.S.No.1794/2020 38 It is submitted that it was purely out of her own volition that Defendant No. 1 settled half portion of Item No. 1 in favour of Defendant No.2 and Item No.3 in favour of the plaintiff by way of gift. The parties, including the plaintiff, have been receiving and enjoying rental income from the respective portions of Item Nos.1 to 3 of the suit schedule properties, which has been utilized for family needs, repayment of housing and overdraft loans, and for their residence.
39. The plaintiff, in particular, has derived substantial financial benefits from the said properties, including availing term loan and mortgage loan facilities to the tune of Rs. 5,00,000/-. However, he has defaulted in repayment of the equated monthly installments, thereby compelling Defendant Nos. 1 and 2 to discharge the said liabilities in order to prevent Item No. 2 of the suit schedule property from being brought to sale by the lending institutions for recovery of dues.
24
O.S.No.1794/2020
40. The plaintiff has already acted upon the gift deed dated 10.10.2017 executed in his favour, and pursuant thereto, he has been in possession and enjoyment of Item No. 3 of the suit schedule property. He has been regularly receiving and enjoying the rental income derived from the residential units therein. However, the plaintiff has deliberately and cleverly suppressed these material facts in the plaint.
41. It is further submitted that Defendant No. 1, apart from attending to various family and legal necessities, has been utilizing the rental income derived from Item Nos.1 to 3 of the suit schedule properties and has also continued to financially support the plaintiff. The plaintiff, on his own volition and for his convenience, shifted long back to a separate residence at Jayanagar 1st Block along with his family members.
42. The allegation that Defendant No. 1 is attempting to encumber Item No. 4 of the suit schedule property is false, baseless, and made only with an intention to create an illusory cause of action to institute the present suit. 25
O.S.No.1794/2020
43. The very filing of the present suit for partition, despite the parties having already acted upon their respective titles created under valid and undisputed documents at an earlier point of time, clearly demonstrates that the suit is speculative, vexatious, and an abuse of the process of this Hon'ble Court. The plaintiff has not approached this Court with clean hands and has suppressed material facts, with a malafide intention to make wrongful gain for himself and to cause loss to the defendants.
44. It is submitted that Item No. 1 of the suit schedule property has been substantially improved by Defendant No. 2, who has constructed a new residential building by investing huge amounts from his own hard-earned income and by availing substantial bank loans. Consequently, the value of the said property has significantly appreciated. The present suit, filed after a lapse of more than 4 ½ years, is clearly barred by acquiescence.
26
O.S.No.1794/2020
45. With regard to Item No.4 of the suit schedule property, which is an agricultural land, it is submitted that the same is available for partition. Defendant Nos. 1, 3 to 5, being the mother and sisters, have expressed their willingness to relinquish their respective 1/6th share each in favour of Defendant No. 2. They have no objection to allotting 1/6th share to the plaintiff, and the remaining 5/6th share may be allotted to Defendant No. 2. Defendant Nos.1, 3 to 5 have thus consented to relinquish their respective right, title, interest, and possession in favour of Defendant No.2.
46. In view of the aforesaid facts, it is clear that plaintiff is the absolute owner in possession and enjoyment of Item No. 3 of the suit schedule property along with its appurtenances and structures. Defendant Nos. 1 and 2 are joint owners in possession and enjoyment of Item No. 1.Defendant Nos. 3 to 5 are joint owners in possession and enjoyment of Item No. 2 of the suit schedule property.
27
O.S.No.1794/2020
47. The plaintiff has not paid proper court fee. The suit is not maintainable under Section 35(2) of the Karnataka Court Fees and Suits Valuation Act, as the court fee has not been paid on the market value of Item Nos. 1 to 3 of the suit schedule properties as on the date of the suit. Hence, it is prayed that this Hon'ble Court be pleased to dismiss the suit. It is further prayed that in respect of Item No. 4 of the suit schedule property, 5/6th share be allotted to Defendant No. 2 and 1/6th share to the plaintiff, in view of the relinquishment by Defendant Nos. 1, 3 to 5.
48. Defendant Nos. 4 and 5 have filed an additional written statement denying the contents of the plaint. They contend that Defendant No.2 had assured to give them 1/6th share each in the suit schedule properties and obtained their signatures on the written statement without explaining its contents. Believing his representation, they signed the same without reading. Subsequently, they came to know that Defendant No. 2 has suppressed material facts with an intention to defeat their rights in the suit properties and it 28 O.S.No.1794/2020 came to their knowledge that the defendant No.2 has suppressed the facts only with an intention to defraud their rights in the suit properties. It is contended that Peerappa, father of these defendants, was working in Karnataka Public Service Commission, and during his lifetime he purchased site No. 33 measuring 30 into 40.
49. The plaintiff has already acted upon the gift deed dated 12.10.2017 executed in his favour, and pursuant thereto, he has been in possession and enjoyment of Item No.3 of the suit schedule property. He has been regularly receiving and enjoying the rental income derived from the residential units therein. However, the plaintiff has deliberately and cleverly suppressed these material facts in the plaint.
50. It is further submitted that Defendant No. 1, apart from attending to various family and legal necessities, has been utilizing the rental income derived from Item Nos.1 to 3 of the suit schedule properties and has also continued to financially support the plaintiff. The plaintiff, on his own volition and for 29 O.S.No.1794/2020 his convenience, shifted long back to a separate residence at Jayanagar 1st Block along with his family members.
51. The allegation that Defendant No.1 is attempting to encumber Item No.4 of the suit schedule property is false, baseless, and made only with an intention to create an illusory cause of action to institute the present suit.
52. The very filing of the present suit for partition, despite the parties having already acted upon their respective titles created under valid and undisputed documents at an earlier point of time, clearly demonstrates that the suit is speculative, vexatious, and an abuse of the process of this Hon'ble Court. The plaintiff has not approached this Court with clean hands and has suppressed material facts, with a malafide intention to make wrongful gain for himself and to cause loss to the defendants.
53. It is submitted that Item No.1 of the suit schedule property has been substantially improved by Defendant No.2, 30 O.S.No.1794/2020 who has constructed a new residential building by investing huge amounts from his own hard-earned income and by availing substantial bank loans. Consequently, the value of the said property has significantly appreciated. The present suit, filed after a lapse of more than 4 ½ years, is clearly barred by delay, acquiescence, and the principle of estoppel.
54. With regard to Item No. 4 of the suit schedule property, which is an agricultural land, it is submitted that the same is available for partition. Defendant Nos. 1, 3 to 5, being the mother and sisters, have expressed their willingness to relinquish their respective 1/6th share each in favour of Defendant No. 2. They have no objection to allotting 1/6th share to the plaintiff, and the remaining 5/6th share may be allotted to Defendant No. 2. Defendant Nos. 1, 3 to 5 have thus consented to relinquish their respective right, title, interest, and possession in favour of Defendant No. 2.
55. In view of the aforesaid facts, it is clear that plaintiff is the absolute owner in possession and enjoyment of Item No. 3 31 O.S.No.1794/2020 of the suit schedule property along with its appurtenances and structures. Defendant Nos. 1 and 2 are joint owners in possession and enjoyment of Item No. 1. Defendant Nos. 3 to 5 are joint owners in possession and enjoyment of Item No. 2 of the suit schedule property.
56. The plaintiff has not paid proper court fee. The suit is not maintainable under Section 35(2) of the Karnataka Court Fees and Suits Valuation Act, as the court fee has not been paid on the market value of Item Nos. 1 to 3 of the suit schedule properties as on the date of the suit. Hence, it is prayed that this Hon'ble Court be pleased to dismiss the suit. It is further prayed that in respect of Item No. 4 of the suit schedule property, 5/6th share be allotted to Defendant No. 2 and 1/6th share to the plaintiff, in view of the relinquishment by Defendant Nos. 1, 3 to 5.
57. It is further submitted that Defendant Nos. 4 and 5 have filed an additional written statement denying the contents of the plaint. They contend that Defendant No. 2 had 32 O.S.No.1794/2020 assured to give them 1/6th share each in the suit schedule properties and obtained their signatures on the written statement without explaining its contents. Believing his representation, they signed the same without reading. Subsequently, they came to know that Defendant No. 2 has suppressed material facts with an intention to defeat their rights in the suit properties.
58. They further contend that their father, Late Peerappa, who was working in the Karnataka Public Service Commission, had purchased Site No. 33 measuring 30 x 40 during his lifetime. They further contend that Defendant No. 2, in collusion with Defendant No.1, has attempted to deprive them of their legitimate share in the suit properties. It is alleged that the gift deed dated 10.10.2013 executed by Defendant No.1 in favour of Defendant Nos. 3 to 5 in respect of Item No. 2 of the suit schedule property is a conditional gift deed and is not valid, as the said property was acquired by their father Peerappa and hence Defendant No. 1 had no absolute right to execute the same.
33
O.S.No.1794/2020
59. It is also contended that Defendant Nos. 4 and 5 have not relinquished their respective 1/6th shares in Item No. 4 of the suit schedule property in favour of Defendant No. 2, as alleged by him in his written statement. The valuation slip filed by Defendant No. 2 is also denied. According to Defendant Nos. 4 and 5, they are entitled to 1/6th share each in all the suit schedule properties and together claim 1/3rd share in the suit properties. Hence, they have prayed to decree the suit accordingly.
60. Plaintiff examined himself as PW-1 and produced documents marked as Ex.P1 to Ex.P34 and closed the evidence. The defendant No.2 examined himself as DW-1 and produced documents marked as Ex.D1 to Ex.D-22. The defendant No.4 examined herself as DW-2 and produced documents marked as Ex.D-23 to Ex.D26 and closed the evidence
61. Heard the arguments of Learned Counsel for Plaintiff and Learned Counsel for Defendants. The Learned Counsel 34 O.S.No.1794/2020 for Plaintiff and Learned Counsel for Defendant No.1 to 3 have filed their written arguments.
62. On the basis of the pleadings of the parties, this Court has framed the following issues:
I SSUES
1) Whether plaintiff proves that suit schedule properties are Joint Family properties?
2) Whether plaintiff proves that Gift Deed dated 12-12-2013 executed by defendant No.1 in favour of defendants No.3 to 5 in respect of Item No.2 of suit schedule property is not binding on plaintiff's share?
3) Whether plaintiff further proves that Gift Deed dated 19-10-2015 executed by defendant No.1 in favour of defendant No.2 in respect of Item No.1 of suit schedule property is not binding on plaintiff's share?
4) Whether plaintiff further proves that Gift Deed dated 12-10-2017 executed by defendant No.1 in favour of plaintiff in respect of Item No.3 of suit schedule property has not been accepted by plaintiff and same is not binding upon plaintiff's share?35
O.S.No.1794/2020
5) Whether plaintiff is entitled to 1/6th share in Item Nos.1 to 4 of suit schedule properties?
6) What Order or Decree?
Additional Issue
1. Do Defendants prove that the suit is not properly valued and the court fee paid is insufficient?
63. My findings on the above issues are as under:
Issue No.1 : In the "Affirmative"
Issue No.2 : In the "Affirmative"
Issue No.3 : In the "Affirmative"
Issue No.4 : In the "Affirmative"
Issue No.5 : In the "Affirmative"
Addl. Issue No.1: In the "Negative"
Issue No.6 : As per the final order, for the following:
REASONS
64. Issue No.1 to 4: The plaintiff has filed the present suit seeking partition and separate possession of his alleged 1/6th share in the suit schedule properties.
36
O.S.No.1794/2020
65. The genealogical tree produced by the plaintiff in the plaint as well as in his chief-examination affidavit has not been disputed by the defendants. Therefore, the relationship between the parties stands admitted. It is an undisputed fact that the plaintiff and Defendant Nos. 2 to 5 are the children of Defendant No. 1. Defendant No. 2 is the brother of the plaintiff and Defendant Nos. 3 to 5 are the sisters of the plaintiff and defendant No.2. Since there is no dispute regarding the relationship, the same does not require further proof.
66. It is also an undisputed fact that the suit schedule properties stand either in the name of Defendant No. 1 or are derived from the properties originally acquired by late Sri Peerappa. The core dispute, therefore, revolves around the nature of the properties, namely, whether they are self- acquired properties of Defendant No. 1 or joint family properties, and the validity and binding nature of the gift deeds executed in respect of the same.
37
O.S.No.1794/2020
67. It is not in dispute that the plaintiff's father, late Peerappa, was employed in the Karnataka Public Service Commission. According to the pleadings of the plaintiff as well as defendant Nos. 4 and 5 who have filed an additional written statement opposing the stand of defendant Nos. 1 to 3 and they have stated that, during his lifetime, Peerappa acquired several properties out of his earnings while acting as the Karta and manager of the joint family.
68. It is contended that Peerappa purchased a site bearing No. 33, situated at 2nd Cross, 10th Main Road, Arekempanahalli, Wilson Garden, Bangalore, measuring 30 x 40 feet, under a registered sale deed dated 19.06.1978 in the name of defendant No. 1. The document was registered in the office of the Sub-Registrar, Jayanagar, Bangalore, in Book No. 1, Volume No. 385, at pages 22-23, as Document No. 980/1978-79. It is further stated that Peerappa constructed a residential building consisting of ground and first floor on the said property, and all family members resided therein jointly. 38
O.S.No.1794/2020
69. Further, on 14.04.1981, Peerappa purchased another property bearing No. 59, situated at 10th Main Road, 5th Cross, Arekempanahalli, Wilson Garden, Bangalore, measuring 40 x 26+30/2 approximately 1120 square feet, under a registered sale deed bearing Document No. 3129/1981-82, Volume No. 632 at pages 233-236, in the office of the Sub-Registrar, Jayanagar, Bangalore.
70. It is also the case of the plaintiff that another property, namely Site No. 1203 situated at Nagarabhavi II Stage, Bangalore, measuring East-West 9.20 meters and North- South 6.21 meters, was allotted by the BDA in the name of defendant No. 1 vide allotment letter dated 24.05.1994. The entire consideration amount for the said site was allegedly paid by Peerappa, and the property was later registered in the name of defendant No. 1 under Document No. 15607/2001- 2002 dated 26.02.2002.
71. With regard to Item No. 4 of the suit schedule, PW-1 has stated that Peerappa and his brother Champla Naik were in 39 O.S.No.1794/2020 joint possession of ancestral agricultural land measuring 4 acres in Survey No. 251 situated at Kodigenahalli Village, Madhugiri Taluk, Tumkur District. After the death of Peerappa on 19.04.2002, defendant No. 1, as one of his legal heirs, effected partition of the said ancestral property with legal heir of Bhimanayak under a registered partition deed dated 01.07.2016 vide document bearing No. MDG-1- 01348/2016-17 CD No. MDGD-194 and got the revenue records (khata) transferred to her name.
72. The plaintiff further states that defendant No. 1, acting to his detriment and without his knowledge or consent, executed a gift deed dated 12.12.2013 in favour of defendant Nos. 3 to 5, purportedly including his consent by forging his signature. When questioned, defendant No. 1 allegedly assured him that his share in the joint family properties would be given.
73. He has further stated that defendant Nos. 1 and 2 demolished the existing structure on Item No. 1 property and 40 O.S.No.1794/2020 constructed a multi-storied building consisting of five floors measuring approximately 600 square feet. Subsequently, defendant No. 1 executed a gift deed dated 19.10.2015 in favour of defendant No. 2, transferring 50% share in Item No. 1 property.
74. The plaintiff contends that he has not been allotted his legitimate share in any of the joint family properties. Therefore, he issued a legal notice dated 23.04.2016 calling upon the defendants to cancel the aforementioned gift deeds and to effect partition by metes and bounds. Though defendant No. 1 initially assured settlement, no such partition was effected.
75. It is further stated that defendant No. 3 executed a gift deed dated 12.10.2017 in favour of the plaintiff in respect of Item No. 3 property. However, the plaintiff refused to accept the same, asserting that he is entitled to an equal share in all joint family properties and not selective allotment. 41
O.S.No.1794/2020
76. On the other hand, DW-1, in his evidence has reproduced the contents of written statement. Following are High lights in the written arguments of plaintiff:
(i) Plaintiff is the eldest son of Peerappa and his father was working in Karnataka Public Service Commission and during his lifetime, he purchased the item No.1 of the suit schedule under the registered sale deed dated 19-6-1978 in the name of defendant No.1 in the office of Sub Registrar Jayanagar, Bangalore, vide document No.980/1978-79, Book No.1, volume No. 385 at page No. 22-23 and constructed ground floor and first floor in the said building and the said property document is produced as per Ex.P11.
(ii) On 14-10-1981 Peerappa purchased another property bearing survey No.59, 10th main, 5th cross, Arekempanahalli, Wilson Garden, Bangalore, measuring 40 x 26+30/2 with a total measurement of 1,120 Sq. feet from Chikkellappa S/o Muniswamappa, vide document No. 3129/1981-82, volume No. 632, Book No.1, page No. 233 to 236, in the office of Sub-
Registrar Jayanagar, as per Ex.P9.
42
O.S.No.1794/2020
(iii) Peerappa was able to allot BDA site in the name of dependent No.1 vide allotment letter dated 24.05.1994, in respect of site bearing No.1203, measuring East-West 9.12 meters and North-South 6.21 meters, at Nagarbhavi 2 nd stage, Bangalore. After allotment, the amount has been paid by Peerappa to the BDA for registration of site on behalf of his wife, and BDA has registered the said site in the name of dependent No.1 vide document bearing No.15607/2001-2002, Book No.1, volume No. 470, at page No. 6 to 9, dated 26.02.2002, in the office of Sub-Registrar Bangalore, which is item No.3 of the suit schedule, and to that effect, plaintiff has produced Ex.P25.
(iv) Peerappa and his brother Champla Naik were in joint possession of their ancestral landed property bearing survey No. 251 measuring 4 acres in Kali Devapura village, Kodigenahalli Madhugiri Taluk, Tumkur district, and Peerappa died on 19-04-2002 and after his death, the defendant No.1 partitioned agricultural landed property with Bheema Nayak, who is legal heir of late Champla Naik under 43 O.S.No.1794/2020 the registered partition deed and she got 2 acres land in the said property under a registered partition deed bearing No. MDG-1-013483/2016, CD No. MDGD 194 dated 01-07-2016 in the office of Sub-Registrar Madhugiri in Tumkur district as per Ex.P5.
(v) The defendant No.1 acted detrimental to the right and interest of the plaintiff, and he demanded his share from the defendant No.1, and she consoled him by assuring to give his legitimate share by metes and bounds in the joint family properties, and she without the knowledge of the plaintiff transferred item No.2 of the schedule to the defendant No.3 to 5, as per the gift deed marked as Ex.P9 in the year 2013. It was neither brought to the knowledge of the plaintiff, nor his consent was taken and he has not affixed his signatures to the said document as a witness and his signature has been forged, and said gift deed is not binding on the plaintiff. He shocked after seeing his forged signature as consenting witness to the gift deed and threatened to lodge a complaint for forging his signature for which defendant No.1 pacified 44 O.S.No.1794/2020 him and assured him that, she will give definite share to him in the family properties. The plaintiff has issued legal notice to the defendants on 23-04-2016 demanding to cancel gift deeds and demanded to effect partition in the joint family properties by metes and bounds which is served upon them.
(vi) The defendant No.1 assured that he will give equal share in joint family properties and requested the plaintiff not to take any action and promised to settle the matter amicably. The defendant No.1 gifted item No.3 as per Ex.P25 on 12.10.2017 in favor of plaintiff, and he is not ready to accept the said property and demanded equal share in the joint family properties and promised to transfer entire 2 acres land of the suit schedule and entire 2 nd floor portion constructed in item No.1 of the suit schedule in his name. But, she did not keep up her promise and is not ready to keep item No.3 and he is interested only in equal share in the joint family properties.
45
O.S.No.1794/2020
(vii) The DW-1 took contention that item No.1 and 3 are self- acquired properties of dependent No.1 and she was tailor and she used to earn money. But in the cross-examination of DW- 1, certified copies of admission extract of plaintiff shown to him which shows that, his mother was housewife and said documents are marked as ExP-33 and 34 and he has utterly failed to prove his contention. It clearly shows that defendant No.1 has no source of income to purchase the properties and properties are purchased by his father Peerappa in the name of defendant No.1.
(viii) As per ExD-24 and 25, the defendant No.1 is a housewife and these documents remained unchallenged. Late Peerappa, father of plaintiff and defendant No.2 to 5 during his lifetime, purchased said properties in the name of defendant No.1 and he was an employee in Karnataka Public Service Commission and to avoid future complications, he purchased properties in the name of his wife. In the cross-examination of DW-1, it is elicited that, the parents of defendant No.1 are very poor and 46 O.S.No.1794/2020 they have no lands or any source of income to give money to their daughter to purchase the property.
(ix) He has referred Ex.D-20, which is a handwritten document, under the heading "Consent Letter" dated 29.11.2014, which shows as Palupatti and plaintiff has totally denied the said document.
(x) The defendant No.1 has alleged without any force and pressure from anybody to divide her property in Nagarbhavi, Bangalore and Arekempanahalli, Bangalore between herself and her two sons in the presence of witnesses and her signature is marked as ExP-20(a) and signatures of plaintiff and defendant No. 2 are marked as ExP-20 (b)(c) and this document is totally denied by plaintiff and his signature on the said document. Therefore, this document is really genuine, DW-1 ought to have examined witnesses and defendant No.1 to prove the contents of the said document which clearly established that ExP-20 is created for the purpose of this case.
47
O.S.No.1794/2020
(xi) DW-1 produced one notarized declaration of Late Beerappa as per Ex.D-21 and date is not mentioned and advocate is not identified and both are left blank. In this document also, plaintiff's signatures at page No. 1 and 2 are forged and denied and these signatures are mismatching which could be easily identified by the naked eye and it is created by defendant No.2. In order to grab entire property of his father, defendant No.2 has misled defendant No.4 and 5 and without bringing further knowledge and he has avoided them to read and understand the contents of written statement and obtained their signatures. The contents of paragraph No. 22 of written statement that, the defendant No.1 and 3 to 5 being mother and younger sisters have no objections in allotting 1/6th share of the plaintiff in item No. 4 and remaining 5/6th share in the item No.4 to be granted in favour of defendant No. 2 in view of the defendant No.1, 3 to 5 have expressly relinquished and conceded their share, right, title, interest and possession in the item No.4 of suit schedule is concerned.
48
O.S.No.1794/2020
(xii) But after coming to know this fraud of the defendant No. 2, defendant No.4 and 5 taken NOC from their advocate and engaged another advocate demanding equal share in the said properties. Though defendant No.1 was ready to effect equal share in the properties between her children, the defendant No.2 with the fraudulent motive to grab major share in the suit properties, avoided his mother by polluting her mind.
(xiii) The defendant No.1 gifted half portion in item No.1 of the suit schedule property to her son, defendant No. 2, as per ExP-11. The entire schedule property is mentioned as schedule A measuring East-West 40 feet and North-South 30 feet with total measurement of 1,200 square feet, and defendant No.1 has given half portion to defendant No.2, which is mentioned as suit schedule B and there is no correct identification and measurement to the suit schedule B property. Ambiguity has been created to identify the donor and donee portion.
49
O.S.No.1794/2020
(xiv) The defendant No. 2 has intentionally created gift deed only in order to knock out the entire item No.1 in his name. The defendant No.2 has succeeded in his plan and constructed five floors in the entire land by swallowing the share of defendant No. 1 and he has not allowed the defendant No.1 to give equal share to her children.
(xv) He has relied upon decision of Hon'ble Allahabad High Court reported in Sourabh Gupta vs Smt. Archana Gupta and others held that property purchased by husband in the name of his wife who is a homemaker and has no independent source of income is family property.
77. Learned counsel for defendant No.4 and 5 has filed written arguments on the following points:
(i)The defendant No. 4 and 5 have contended that defendant No. 2 assured to give 1/6th share to defendant No. 4 and 5 in the suit properties and obtained their signatures on the written statement without their instructions and they believed his words and without looking and reading the contents of the 50 O.S.No.1794/2020 written statement, they put their signatures. Recently they came to know that defendant No. 2 has suppressed the facts with the intention to deprive the rights of defendant No.4 and 5 in the suit properties.
(ii) After knowing this fact, defendant No.4 and 5 have decided to conduct the case separately. They have not relinquished any share in the item No.4 of the said property in favour of defendant No. 2 and defendant No.2 has not produced any documents to show that defendant No. 4 and 5 relinquished their shares in favour of defendant No.2.
(iii) The defendant No.2 has stated in the written statement that defendant No.1, 3 to 5 are desirous of denouncing their respective 1/6th share each in the item No.4 of the suit schedule in favour of defendant No.2 which are denied by the defendant No.4 and 5, stating that, they are not relinquished their share in favour of defendant No.2, and claimed that they have a right to claim 1/6th share in all the suit schedule properties.
51
O.S.No.1794/2020
(iii) After filing the suit, Panchayatadars and family members held a Panchayat on 24/09/2023 to effect a partition in the joint family properties. The original partition deed with defendant No.1 and defendant No.4 and 5 are having copies of the partition deed. The plaintiff, defendant No.1 and 2 colluded and suppressed the fact and not disclosed this matter about the partition deed dated 24/09/2023. As per the said document, all family members are decided to allot one single bedroom house to the defendant No. 5 in the item No.1 of the suit schedule. She is enjoying the said property to her lifetime, and in case of transfer, the said property to her family members only. Item No.2 of the sole schedule allotted to the defendant No.3 to 5, and plaintiff and defendants are having equal share in item No.4 of the suit schedule. Therefore, it is prayed to decree the suit as per the partition deed dated 24.9.2023 and allot 1/6th share in all schedule properties.
78. Learned counsel for defendant No.1 to 3 has submitted his arguments on the following points in the written arguments.
52
O.S.No.1794/2020
(i) Suit schedule properties bearing item Nos.1 to 3 are residential properties situated at Bangalore and item No.4 is situated at Kali Devapura, Kodigenahalli, Madhugiri Taluk, Tumkur District. The item No.1 of the schedule property has been purchased by defendant No.1 under the registered sale deed dated 19.6.1978 and item No.3 of the suit schedule is allotted by BDA and subsequently sold in favour of defendant No.1 under the registered sale deed dated 26.02.2002 and both item No. 1 and 2 of the suit schedule purchased by defendant No.1 under two registered sale deeds are individual and self-acquired properties.
(ii)The defendant No.1 being the owner of the item No.1 of the suit schedule put up construction of ground and first floor residential house and khata transferred in the name of defendant No.1. Defendant No.1 executed a registered gift deed dated 19.10.2015 and given half share in the said property to the defendant No.2 and he has been in possession and enjoyment of the half portion of item No.1. 53
O.S.No.1794/2020
(iii) The item No.2 of the schedule has been purchased by late Peerappa in his name under the registered deed dated 14.10.1981 and during his lifetime, he has borrowed the loan amount from Canara Bank B.T.M Layout branch by availing loan for partnership firm M/s. Pradeep Packers in which Late Peerappa was a partner and suit bearing O.S.No.7699/1999 by partnership firm and got the judgment and decree on 30.07.2005. The said loan is discharged by defendant No.1 and 2.
(iv)After the death of Peerappa, khata of the said property transferred in the name of defendant No.1 in respect of item No. 2 of the schedule. The said property is given by way of gift by the defendant No.1 to the defendant No.3 to 5 under the registered gifted deed dated 12.12.2013. The item No.3 of the schedule property had been purchased by Late Beerappa under the registered sale deed dated 26.02.2002 being individual property of defendant No.1 which has been given by her to the plaintiff under the registered gift deed dated 54 O.S.No.1794/2020 12.10.2017. Plaintiff is not at all entitled for any share in the item No.1 to 3 of the suit schedule.
(v) In para 22 of the written statement, defendant No. 1, 3, 4 and 5 have stated and admitted that they have relinquished their 1/6th undivided share each in favour of defendant No.2 and they have no objection to grant of 1/6th share in the agriculture land which is item No. 4 of the suit schedule in favour of defendant No.2. Defendant No. 2 has paid court fee and sought grant of 1/6th share in item No.4 of the suit schedule in favour of the plaintiff and prayed to dismiss the suit in respect of the item No. 1 to 3.
(vi) DW-1 has produced Ex.D6 sale deed in respect of item No.1 purchased by defendant No.1 and there is no evidence to suggest that the sale price has been paid by late Peerappa which goes to show that defendant No.1 paid the sale price. There is no independent evidence adduced by the plaintiff to show that the sale price has been paid by Peerappa. In the cross-examination of PW-1 at page No.4, he admitted that, defendant No.1 and 2 have constructed new house by 55 O.S.No.1794/2020 demolishing old house in item No.1 of the suit schedule. They availed the loan of Rs.12,50,000/- from Bank for construction of the house and defendant No.2 is repaying the said loan amount from the income as an advocate.
(vii) The sale deed marked as ExD-6 and admission in the cross examination of PW-1 at page No.4 would show that, item No.2 of the suit schedule is individual property of defendant No.1 and house has been constructed by defendant No.1 and 2 by borrowing the loan from the bank. Defendant No. 2 is repaying the said loan amount.
(viii) As per section 14(1) of Hindu Succession Act, any property standing in the name of Hindu woman is her individual property and item No.1 being individual property of defendant No.1, she has every right to deal with the said property and hence registered gift deed dated 19-10-2015 marked as ExP-1 under which half share in item No.1 of the suit schedule has been given to the defendant No.2 by defendant No.1 is valid and legal and plaintiff is not entitled for any share in the said property.
56
O.S.No.1794/2020
(ix) There is no plea of limitation taken in the written statement and this court may take the notice of the law of limitation and plaintiff has not stated that when he came to know about ExP-11 Registered Gift Deed dated 19.10.2015. Hence, the notice and knowledge is date of gift deed on 19.10.2015 and suit is filed after lapse of three years from the said date, suit is barred by law of limitation as per Article 56 of Limitation Act.
(x) The item No. 2 of the suit schedule purchased by Peerappa on 14.10.1981 and after his death, the said property has been given by way of gift by defendant No.1 in favour of defendant No.3 to 5 under the registered gift deed dated 12.12.2013 as per Ex.P9. The relief of declaration sought by plaintiff is barred by law of limitation as the suit has been filed after the lapse of three years from 12.12.2013 and plaintiff is not entitled for any share in the said property. The item No.3 of the suit schedule has been purchased by defendant No.1 under the registered sale deed dated 26.02.2002 from BDA and it is in her name and sale price has been paid by her and 57 O.S.No.1794/2020 it is her individual property as per section 14 (1) of Hindu Succession Act and she has given item No.3 of the suit schedule under the registered gift deed dated 12.10.2017.
(xi) The suit is filed in the month of March 2020 which is within period of limitation from the date of suit on 12.10.2017 and gift deed can be declared as null and void. If the gift deed is declared as null and void, the defendant No.1 would get back the item No. 3 of suit schedule and she is alone and it is her individual property and no one can claim share in the said property. Hence, plaintiff is not entitled for any share in the suit properties.
(xii) The item No.4 is individual property and it came to the family under the registered partition deed dated 01.07.2016 and it is joint family property in which all the plaintiff and defendants are entitled to the said property. The property is standing in the defendant No.1 and as per section 14 of Hindu Succession Act, it shall be considered as individual property of defendant No.1.
58
O.S.No.1794/2020
79. On careful appreciation of the cross-examination of DW1, the following material admissions and aspects emerge that. DW1 has admitted that, as per the Record of Rights, the lands bearing Survey Nos. 125/2 and 251 originally stood in the name of his grandfather. The relevant RTC extracts are marked as Ex.P26 to P31. This admission supports the case of the parties that Item No. 4 of the suit schedule is ancestral joint family property, which is in fact not seriously disputed by either side.
80. With regard to Item No.1 property, DW-1 has denied the suggestion that, same was purchased in the name of defendant No.1 in order to avoid obtaining permission from the competent authority, as the father was a Government servant. However, certain admissions made by DW-1, assume significance in this context.
81. DW-1 has admitted that defendant No. 1 had borrowed a loan by mortgaging Item No.1 property, as evidenced by the certified copy of equitable mortgage by deposit of title deeds 59 O.S.No.1794/2020 dated 06.11.1997, marked as Ex.P-32. Importantly, he has further admitted that, in the said document, defendant No. 1 is described as a "housewife."
82. This fact is further corroborated by Ex.P-33 and ExP- 34, wherein also defendant No.1 is described as a housewife. These documents, which have remained unchallenged, cast doubt on the contention of the defendants that, defendant No.1 had an independent source of income sufficient to acquire the suit properties.
83. DW-1 has also admitted certain family relationships that, defendant No. 3 was given in marriage to the brother of the plaintiff's wife, Defendant No.4 had a love marriage performed at Arya Samaj, though he claims it was with the consent of family members. Though these facts are not directly related to title, they reflect the close familial ties and joint family background.
60
O.S.No.1794/2020
84. Further, DW-1 has admitted that in the housing loan application ExD-2, the date is not mentioned. He has also denied the signature of the plaintiff appearing on Exhibit B2(a), thereby indirectly supporting the plaintiff's contention that certain documents contain disputed or forged signatures.
85. Significantly, DW-1 has admitted that Ex.D4 does not bear the seal or signature of any bank official, thereby affecting the credibility and evidentiary value of the said document. He has also denied that, the signature marked as Ex.D4(a) belongs to the plaintiff and has admitted the suggestion that such document may have been created for the purpose of the case.
86. In the cross examination of DW-2, she has admitted that, at the time, when her father was working in KPSC, her mother was not attending any work and she was house wife. She has admitted that, there was no source of income of her mother and there was no financial help from father of her 61 O.S.No.1794/2020 mother. The concerned cross examination portion is as under:
It is true to suggest that, there was no source of income of my mother. There was no financial help from father of my mother.
87. She has stated that, at the time of registration of gift deed marked as ExP-9, she and her sisters went to the office of Sub-Registrar and put their signatures as witnesses and on that day, they had not seen the plaintiff in the office of Sub- Registrar.
88. In the cross examination of PW-1, he has stated that, he has purchased item No.1 of the suit schedule, his father has purchased the property in the name of his mother. He has denied the suggestion that, item No.1 property has been purchased by his mother out of her earnings and amount received by her from her parents.
62
O.S.No.1794/2020
89. In the further cross examination of DW-1, he has admitted that, the extent of property involved in ExP-1 is measuring 30 x 40 feet which is shown as schedule A and 50% of schedule A is B schedule of gift deed executed in his favour and as per gift deed, he is having right in respect of B schedule of said gift deed. It is further admitted that, in ExP- 11, B schedule measurement is not mentioned, but described as 50% of the property and boundaries are also not mentioned in the B schedule of ExP-11.
90. He has not obtained khata in his name in respect of B Schedule of ExP-11 and he has no impediment to transfer khata in respect of B schedule of ExP-11 in his name.
91. In the cross examination of PW-1, he has admitted that, item No.3 property is allotted by BDA to his mother and on 18.02.2002, BDA has executed sale deed in favour of his mother and in the beginning, his mother constructed 6 square house in the said property.
63
O.S.No.1794/2020
92. PW-1 pleaded his ignorance that, his mother borrowed loan from Vijaya Bank Residency Road branch for construction of first floor and second floor in the item No.3 and said loan is repaid by the defendant No.1 out of house rent and income derived from profession of defendant No.2 and Bank has issued loan clearance letter on 30.05.2017.
93. He does not know that, his father was partner of M/s Pradeep Packs and his father had borrowed loan from Canara Bank B.T.M. Layout branch for partnership firm and he mortgaged item No.2 of the suit schedule for borrowing the said loan and after his death, defendant No.1 and 2 have repaid loan amount of Rs.4,50,000/- and discharged the property bearing item No.2 of the suit schedule.
94. Plaintiff has produced ExP-1 which is genealogical tree. Since relationship between the parties is not in dispute, said document has no much significance. He has produced ExP-2 which is khata extract and as per said document, property bearing No.33 of Hombegowda Nagar is in the name of 64 O.S.No.1794/2020 defendant No.1. He has produced ExP-3 in respect of New No.59 of Hombegowda Nagar and as per said document, said property is standing in the names of defendant No.3 to 5. Plaintiff has also produced death certificate of his father which is marked as ExP-4 and his father died on 19.04.2002. Since death of Peerappa is not in dispute, said document has no much importance. He has also produced certified copy of partition deed which is marked as ExP-5 and as per said document, defendant No.1 and Champla Nayak S/o Bheema Nayak effected partition in the item No.4 of the suit schedule and it is ancestral property which has been divided between them and defendant No.1 has got 2 acres land and Champla Nayak got 2 acres land. This fact is not disputed by both parties and defendants have admitted that, said property is ancestral joint family property and both plaintiff and defendants are having equal share in the said property. Hence, right and share of both parties in respect of item No.4 of suit schedule is not at all disputed by the parties. He has also produced encumbrance certificate as per ExP-6 in which there is clear entry about partition deed executed between 65 O.S.No.1794/2020 defendant No.1 and Champla Nayak. He has produced computerized record of rights of land bearing R.S.No.251 of Kali Devapura village of Kodiganahalli Hobli of Madhugiri Taluka in which mutation bearing M.R.H-1/2016-17 dated 11.08.2016 has been effected about partition between defendant No.1 and Champla Nayak in which they have divided 4 acre land and 2 acre land came to the share of defendant No.1 and 2 acre land came to the share of Champla Nayak and to that effect, mutation extract as per ExP-8 has been produced. He has produced certified copy of gift deed dated 12.12.2013 executed by the defendant No.1 in favour of defendant No.3 to 5. On careful reading of contents of ExP- 9, it is clearly mentioned that, property bearing No.59 situated at 10th Main Road, 5th Cross Road, Arekempanahalli Wilson Garden Bangalore measuring 40x26+30/2 with total measurement of 1120 square feet bounded by East- Site No.60, West- Site No.58, North- Site No.50 and South- 20 feet road. In the recitals of said document, it is clearly shows that, said property was open site which was purchased by husband of defendant No.1 and father of plaintiff, defendant No.2 to 5 66 O.S.No.1794/2020 by name Peerappa S/o Bheema Nayak purchased said site from Chikkellappa S/o Muniswamappa on 14.10.1981 under registered sale deed dated 3129/1981-82 Volume No.632 Book No.1 at Page No.233 to 236 and her husband constructed ground floor and first floor and new property number has been given bearing Old PID No.62-157-59 New PID No.144-W0046-10 New No.165 of Ward No.62 of Bairasandra of Bangalore. After the death of Peerappa, property has been transferred in the name of defendant No.1.
95. On appreciating ExP-26 to 30 record of rights of land bearing Sy.No.125/2 of Kalidevapura Village, Kodigenahalli Hobli Madhugiri Taluk the item No.4 is ancestral property standing in the name of Bheemu Naik and it is admitted by the defendants in the written statement that the said property is ancestral property and plaintiff and defendants are having equal share in the said property and the partition taken place between Champla Naik and defendant No.1 and said fact is not at all in dispute. The evidence of DW-1 early establishes that, in ExP-32 the occupation of defendant No.1 67 O.S.No.1794/2020 is shown as housewife and similar description is also show in ExP-33 and 34 which clearly doubt to show that, she was having any independent source of income about acquisition of item No.1 to 3 of suit schedule. Even DW-2 has also clearly admitted in her cross examination that, her mother was not having any independent source of income and there was no financial assistance from her parents which clearly establishes that, there were no independent funds for the defendant No.1 to purchase item No.1 to 3 of suit schedule property. Her husband was working as SDA in Karnataka Public Service Commission and the item No.1 is acquired by him out of his income during his life time Though defendant No.2 has claimed that he has constructed building out of his professional income, there are no documents about his income. No doubt the defendant No.1 might have borrowed the loan from the Bank and repaid the loan from the rental income, the said properties are acquired by her husband during his life time and she was not having independent source of income to purchase the said property and she has failed to prove that she acquired the properties out of her own 68 O.S.No.1794/2020 income to prove her absolute title to execute the gift deed in favour of plaintiff and defendant No.3 to 5. The defendant No.3 to 5 being sisters of plaintiff and defendant No.2 have specifically denied the contents of written statement filed by defendant No.2 and taken contention that, the defendant No.2 assured them and taken their signatures to the written statement without permitting them to read and know the contents of written statement. In the absence of independent income about acquisition of item No.1 to 3 by the defendant No.1, it cannot be held that, suit properties are self acquired properties of defendant No.1 as she is house wife and there are no documents about her acquisition out of independent source. So, the contention taken by the defendant Nos.1 and 2 is not acceptable. Even in the gift deed there is no specific schedule and exact measurement and boundaries about gifting of specific property to the defendant No.2 and 3 to 5 in the gifted properties and PW--1 also denied his signatures on the gift deeds. These circumstances clearly establish that, the suit properties belonged to husband of defendant No.1 and the said properties acquired during his life time. Though 69 O.S.No.1794/2020 the defendant No.1 and 2 might have borrowed the loan from Canara Bank and Vijaya Bank and might have repaid the loan amount, they will not take away the birth right of plaintiff and defendant No.3 to 5 in the joint family properties. So, I hold that, the plaintiff has proved that suit property are joint family properties and gift deed executed by defendant NO.1 in favour of defendant No.3 to 5 in respect of item No.2 and gift deed executed by defendant No.1 in respect of item No.1 in favour of defendant No.2 and gift deed executed by defendant No.1 in favour of the plaintiff are not binding on his share in the item No.1 to 4 of the suit schedule. So, I answer Issue No.1 to 4 in the Affirmative.
96. Issue No.5: In view of my discussion above, I hold that, plaintiff is entitle for 1/6th share in the suit schedule properties by metes and bounds. The defendant No. 1 to 5 are entitle for 1/6th share each in the suit schedule properties by metes and bounds and the gift deeds are not binding on the share of the plaintiff. So, I answer Issue No.5 in the Affirmative.
70
O.S.No.1794/2020
97. Addl. Issue No.1: "The defendants have taken contention that the plaintiff has not paid proper Court fee. The plaintiff has sought the relief of partition and he has valued the suit under Section 35(2) of Karnataka Court Fees and Suits Valuation Act and paid maximum Court fee of Rs.200/- on the said relief. Has sought the relief of declaration that gift deeds dtd:.12.12.2013, 19.10.2015 and 12.10.2017 as null and void and not binding on him. Section 38 of Karnataka Court Fees and Suits Valuation Act reads as follows;
(1) In a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject-matter of the suit, and such value shall be deemed to be,-- if the whole decree or other document is sought to be 71 O.S.No.1794/2020 cancelled, the amount or value of the property for which the decree was passed or other document was executed; if a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property.
(2) If the decree or other document is such that the liability under it cannot be split up and the relief claimed relates only to a particular item of property belonging to the plaintiff or to the plaintiff's share in any such property, fee shall be computed on the value of such property or share or on the amount of the decree, whichever is less.
Explanation 1.- A suit to set aside an award shall be deemed to be a suit to set aside a decree within the meaning of this section.
Explanation 2.- In a suit for cancellation of a decree and possession of any property, the fee shall be computed as in a suit for possession of such property.
72
O.S.No.1794/2020
98. The Hon'ble Supreme Court while considering the provisions of Section 7(iv)(c) of the KCF (SV) Act in the case of SUHRID SINGH @ SARDOOL SINGH v. RANDHIR SINGH AND OTHERS reported in AIR 2010 SC 2807 has held as under:
7. In this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the "co- parcenery" and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the court fee was computable under section 7(iv)(c) of the Act. The trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale deeds.
99. Since the plaintiff has not sought the relief of cancellation of gift deeds, he has rightly valued the suit and paid proper Court fee under Section 24 of Karnataka Court Fees and Suits Valuation Act. So, I answer Addl. Issue in the Negative.
73
O.S.No.1794/2020
100. Issue No.6: For the reasons discussed above, I proceed to pass the following:
ORDER Suit of the plaintiff is hereby decreed. Plaintiff is entitled for 1/6th share in the suit schedule properties by metes and bounds.
Defendant Nos.1 to 5 are entitled for 1/6th share each in the suit properties by metes and bounds.
The gift deed dtd:12.12.2013 bearing No.SHR-1-01846/2013-2014 CD NO.SHRD36 executed by defendant No.1 in favour of defendant No.3 to 5 in the office of Sub-Registrar, Jayanagar (Shantinagar), gift deed dtd:19.10.2015 bearing document No.SHR-1-01962/2016-17 CD No.SHRD56 in the office of Sub-Registrar, Jayanagar, by the defendant No.1 in favour of defendant No.2 and gift deed dtd:12.10.2013 executed by defendant No.1 in favour of plaintiff vide document bearing No.NGB-1-05425/2017- 18 CD NO.NGBD320 dtd:12.10.2017 in the
office of Sub-Registrar Nagarabhavi
74
O.S.No.1794/2020
Bengaluru are null and void and not binding on the share of the plaintiff.
No order as costs.
Draw preliminary decree accordingly. Office is hereby directed to register final decree proceedings after expiry of appeal period.
(Dictated by using AI Adalat software, corrected and then pronounced by me in open court, on this the 23rd day of March, 2026) (GANAPATI GURUSIDDA BADAMI) VI Addl.City Civil & Sessions Judge Bengaluru City.
AN NEXURE
1. List of Witnesses examined on behalf of Plaintiff/s P.W.1 : Sri.Umesh Naik
2. List of documents exhibited on behalf of Plaintiff/s Ex.P.1 : Family tree issued by Deputy Tahasildar accompanied by affidavit Ex.P.2 : Katha Extract dated 30-12-2019 Ex.P.3 : Katha Extract dated 30-12-2019 Ex.P.4 : Death certificate of Peerappa Ex.P.5 : Certified copy of Partition Deed dated 01-07-2016 Ex.P.6 : Encumbrance certificate Ex.P.7 : Record of Rights bearing survey No.251 of 75 O.S.No.1794/2020 Kalidevapura Grama Ex.P.8 : Mutation Entry No.H1 of Kalidevapura Grama Ex.P.9 : Certified copy of Gift Deed dated 12-12-2013 Ex.P.10 : Encumbrance certificate Ex.P.11 : Certified copy of Gift Deed dated 19-10-2015 Ex.P.12 : Office copy of legal notice 23-05-2016 Ex.P.13 to : Postal receipts Ex.P.20 Ex.P.21 to : Acknowledgments Ex.P.23 Ex.P.24 : Unserved RPAD Ex.P.24(a) : Original notice Ex.P.25 : Certified copy of Gift Deed dated 12-10-2017 Ex.P.26 to : RTC of Sy.No.125/2 and Sy.No.251 Ex.P.31 Ex.P.32 : Certified copy of the Equitable Mortgage by deposit of title deed dtd:06.11.1997 Ex.P.33 & : Certified copy of the admission extract of plaintiff Ex.P.34
3. List of Witnesses examined on behalf of Defendant/s D.W.1 : Sri.P.Dinesh Nayak D.W.2 : Smt.Saroja P.
4. List of documents exhibited on behalf of Defendant/s Ex.D.1 : Certified copy of Judgment in O.S.No.7699-1999 Ex.D.2 : State bank of mysore housing loan application Ex.D.2(a) : Signature of P.W.1 in loan application in Ex.D.2 Ex.D.3 : Certificate of closure of loan against property of Ms.Puttalakshmamma Ex.D.4 : State Bank of Mysore Direct Housing Finance Proposal / Control Return Ex.D.4(a) : Signature of P.W.1 in Ex.D.4 76 O.S.No.1794/2020 Ex.D.5 : Original title deed Ex.D.6 : Certified copy of sale deed dtd:19.06.1978 Ex.D.7 : Certified copy of sale deed dtd:14.10.1981 Ex.D.8 & : Tax paid receipts pertaining to suit properties Ex.P.9 Ex.D.10 : Encumberance certificate for the period 01.04.2004 to 28.09.2020 Ex.D.11 : Tax paid receipt Ex.D.12 : Discharge deed dtd:30.05.2017 Ex.D.13 : Canara Bank letter dtd:19.08.2003 Ex.D.14 : Letter dtd:24.08.2003 to Canara Bank written by defendant No.1 Ex.D.15 : Copy of DD dtd:21.08.2003 Ex.D.16 : Letter dtd:24.08.2003 of Canara Bank Ex.D.17 : Canara Bank receipt dtd:24.08.2003 Ex.D.18 : Certificate issued by Central Bank of India dtd:02.04.2022 Ex.D.19 : Insurance pertaiining to schedule property No.3 Ex.D.20 : Consent letter dtd:29.11.2014 Ex.D.20(a) : Signature of D.W.1 in Ex.P.20 Ex.D.20(b) : Signature of plaintiff Ex.D.20(c) : Signature of defendant Ex.D.21 : Declarations Ex.D.21(a) : Signature of D.W.1 father Ex.D.21(b) : Plaintiff signature Ex.D.21(c) : Signature of D.W.1 Ex.D.22 : Statement of account of joint bank account of plaintiff and defendant No.1 Ex.D.23 : True copy of school application form Ex.D.24 : True copy of application form for admission to Gangamma Hombele Gowda Girls High School 77 O.S.No.1794/2020 Ex.D.25 : True copy of application form of my sister to K M School, Bengaluru Ex.D.26 : True copy of appliation form of my sister for admission to Gangamma Hombele Gowda Girls High School VI Addl. City Civil & Sessions Judge Bengaluru City.