Karnataka High Court
Shankreppa S/O. Fakirappa Pandari vs Smt. Muttawwa W/O. Fakirappa Pendari on 26 July, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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NC: 2024:KHC-D:10635-DB
RFA No. 100138 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 26TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
REGULAR FIRST APPEAL NO. 100138 OF 2018 (PAR/POS)
BETWEEN:
SHANKREPPA S/O. FAKIRAPPA PANDARI
AGE:44 YERS, OCC:AGRICULTURE,
R/O: PETLUR-587112,
TAL:MUDHOL, DIST:BAGALKOT.
...APPELLANT
(BY SRI. SHEKHARGOUDA M. NAGANURI, ADVOCATE)
AND:
1. SMT. MUTTAWWA W/O. FAKIRAPPA PANDARI,
Digitally AGE: 77 YEARS, OCC: AGRICULTURE,
signed by
GIRIJA A
BYAHATTI
R/O: PETLUR-587112,
Location:
HIGH COURT
TAL: MUDHOL, DIST: BAGALKOT.
OF
KARNATAKA (SINCE DECEASED, DELETED AS PER ORDER
DATED 07.08.2020)
2. SMT. RUKMAWWA W/O. MUTTAPPA B. PATIL,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: BIDARI-587313,
TAL: MUDHOL, DIST: BAGALKOT.
3. SMT. SHEKAWWA W/O. SIDDAPPA KARIGAR,
AGE: 47 YEARS OCC: AGRICULTURE,
R/O: LINGANUR-587301
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NC: 2024:KHC-D:10635-DB
RFA No. 100138 of 2018
TAL: JAMKHANDI, DIST: BAGALKOT.
4. SMT. GIREWWA W/O. PARASAPPA KARIGAR,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: LINGANUR-587301,
TAL: JAMKHANDI, DIST: BAGALKOT.
5. SMT. SAVITRI W/O. BHIMAPPA HALINGALI,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: SIDDAPUR-587301,
TAL: JAMKHANDI, DIST: BAGALKOT.
6. SMT. SUMAWWA W/O. RAMANNA KALLOLLI,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O: HULYAL-587301,
TAL: JAMKHANDI, DIST: BAGALKOT.
7. SMT. SUNANDA W/O. GULAPPA KARIGAR,
AGE: 36 YEARS OCC: AGRICULTURE,
R/O: LINGANUR-587301,
TAL: JAMKHANDI, DIST: BAGALKOT.
...RESPONDENTS
(BY SMT. DEEPA DODDATTI AND
SRI. PAVAN B. DOTTATTI, ADVOCATES FOR R3, R4, R7;
SRI. MALLIKARJUN C. HUKKERI, ADVOCATE FOR R2, R5, R6;
R-1 DECEASED, R2 TO R7 TREATED AS LRS OF DECEASED R1)
---
THIS RFA IS FILED U/SEC. 96 R/W. ORDER XLI RULE 1 CPC,
1908. AGAINST THE JUDGMENT AND DECREE DATED:24.02.2018
PASSED IN O.S.NO.103/2015 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
MUDHOL, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
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NC: 2024:KHC-D:10635-DB
RFA No. 100138 of 2018
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 08.07.2024 AND COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT', THIS DAY, T.G.SHIVASHANKARE GOWDA J.,
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
and
HON'BLE MR.JUSTICE T. G. SHIVASHANKARE GOWDA
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA) In this appeal, the defendant has challenged the judgment and decree passed in O.S.No.103/2015 dated 24.12.2018 passed by Prl. Senior Civil Judge, JMFC, Mudhol (for short, 'Trial Court').
2. The appellant was the defendant and respondents were the plaintiff Nos.1 to 7 before the Trial Court. The rankings of the parties will be referred to as per their status before the Trial Court. 3. The land in RS No.125/2 measuring 6 acres 10 guntas and RS No.125/1 measuring 4 acres 21 guntas situated at Petlur village of Mudhol Taluk is the subject -4- NC: 2024:KHC-D:10635-DB RFA No. 100138 of 2018 matter of the suit described as plaint 'B' schedule properties.
4. Brief facts of the case are, one Muttappa is the prepositus who had a son by name Fakkirappa. Muttappa, his wife Rukmawwa are no more. Plaintiff No.1 by name Muttawwa is the wife of Fakkirappa. Plaintiff Nos.2 to 7 and defendant are their children. Fakkirappa died on 28.06.2015. Fakkirappa and his children constitute a Hindu Undivided Joint Family. The plain schedule 'B' properties are joint family properties of the plaintiffs and defendant. Fakkirappa acquired the item No.1 of the plaint 'B' schedule through gift deed executed by Girewwa. Land in RS No.62/2 of Timmapur village belonging to the family of the plaintiffs and defendant. It was sold to one Soraganv family under a registered sale deed. Out of sale proceeds, item No.2 of the suit 'B' schedule property was purchased from Smt. Balavva Belli. During his lifetime Fakkirappa, plaintiffs and defendant were enjoying the suit 'B' schedule properties as joint family properties.
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NC: 2024:KHC-D:10635-DB RFA No. 100138 of 2018 4(a) At no point of time, Fakkirappa having any intention to gift the suit schedule properties in favour of the defendant. But the defendant has created a gift deed dated 14.05.2015 by playing fraud upon Fakkirappa. The plaintiffs came to know that behind their back, the defendant has taken the gift deed from Fakkirappa. They adviced Fakkirappa that the gift deed has been cooked up by the defendant. He promised to cancel the gift deed but on 27.06.2015 in the night hours, the defendant committed the murder of Fakkirappa. On 28.06.2015, the plaintiffs came to know about the same at 3.30 p.m. They were proceeding to file police complaint, but elderly people in the locality stopped them as the defendant agreed before them to cancel the gift and requested the plaintiff No.1 not to file any complaint. Believing the words of the defendant, plaintiffs did not file any complaint but she signed on a blank paper before the police who closed the case by registering UDR. Thereafter plaintiff requested the defendant to cancel the gift deed but he did not accept their request. Hence, the plaintiffs have filed the present -6- NC: 2024:KHC-D:10635-DB RFA No. 100138 of 2018 suit seeking cancellation of gift deed and also partition and separate possession of their share of properties.
5. The defendant opposed the suit by filing written statement, inter alia admitting the relationship. He denied that plaint suit schedule properties are the joint family properties and plaintiffs and defendant are in possession and enjoyment. It is the specific case of the defendant that the entire suit schedule lands are self acquired properties of Fakkirappa and he was in enjoyment of the property as exclusive owner. The plaintiffs were not having cordial relationship with Fakkirappa. Due to love and affection, Fakkirappa executed the gift deed dated 14.05.2015 gifting the suit schedule properties in favour of the defendant. Fakkirappa executed the gift when he was in good health, on his own will and wish without any coercion or force. By virtue of the gift deed, khata has been changed. The plaintiffs have no right title or interest over the suit schedule properties and sought for dismissal of the suit.
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NC: 2024:KHC-D:10635-DB RFA No. 100138 of 2018
6. On the basis of the above pleadings, the Trial Court framed following 5 issues.
ISSUES
1. Whether the plaintiffs prove, that they are members of Hindu undivided joint family and properties are joint family properties of plaintiffs and defendant?
2. Whether the plaintiff prove the gift deed dated 14.05.2015 in respect of suit item No-1 and 2 said to have been executed by Fakirappa in favour of defendant is created by the defendant by playing fraud, putting theat on deceased Fakirappa, by undue influence and coercion?
3. Whether the defendant prove the Fakirappa having exclusive ownership in respect of the suit item No-1 and 2 property executed gift deed in favour of defendant on 14.05.2015?
4. Whether the plaintiffs are entitled for the relief sought for?
5. What order or decree
7. In order to prove their case, on behalf of plaintiffs, first plaintiff was examined as PW-1. 7 documents came to be marked as Exs.P-1 to P-7. The defendant examined himself as DW-1 and 2 witnesses as DW-2 and DW-3 and marked 22 documents as per Exs.D- 1 to D-22.
7(a) The Trial Court after hearing both the parties, answered issue Nos.1 and 4 partly in the affirmative, issue -8- NC: 2024:KHC-D:10635-DB RFA No. 100138 of 2018 No.2 in the affirmative, issue No.3 in the negative and while answering issue No.5 decreed the suit granting 1/7th share each to the plaintiffs in item No.1, 1/49th share to the first plaintiff, 8/49th share to the plaintiff Nos.2 to 6 in item No.2 of the suit schedule properties. Aggrieved by the same, the defendant has filed this appeal on various grounds.
8. Heard the arguments of Sri Shekhargouda M. Naganuri, learned counsel for defendant, Smt. Deepa Doddatti, learned counsel for plaintiff Nos.3, 4 and 7 and Sri M.C. Hukkeri, learned counsel for plaintiff Nos.2, 5 and
6.
9. It is contended by the learned counsel for defendant that the suit item No.1 was gifted to Fakkirappa by Girewwa in the year 1967. Therefore, it is the absolute property of Fakkirappa. Item No.2 of the plaint schedule is earned by the income derived by item No.1 thereby item No.2 became self acquired property of Fakkirappa. He was in possession and enjoyment of the -9- NC: 2024:KHC-D:10635-DB RFA No. 100138 of 2018 property till his death on 28.06.2015. The first plaintiff being the wife and plaintiff Nos.2 to 7 being the daughters have abandoned Fakkirappa. Therefore, he was residing with his only son i.e., defendant. Due to love and affection, by voluntary act, Fakkirappa executed a registered gift deed, gifting the entire plaint schedule properties to his son. The defendant got changed the mutation in his name. The plaintiff Nos.2 to 7 are married daughters and the plaintiff No.1 is estranged wife did not have any legal right to claim partition in self acquired properties of Fakkirappa. The defendant being the absolute owner in possession and enjoyment of the property. In order to harass the defendant, frivolous suit is filed by the plaintiffs.
9(a) It is further contended that the plaintiffs are challenging the gift on the ground that it is obtained by fraud. A person who wants to urge fraud has to plead nature of fraud and also lead evidence in proof of it. The plaintiffs failed to produce any evidence in proof of fraud. The Trial Court has erroneously observed that non-
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NC: 2024:KHC-D:10635-DB RFA No. 100138 of 2018 examination of the testator gift cannot be relied. The examination of testator is not required in a gift under Section 68 of the Evidence Act, 1872. The gift deed is a registered document. The plaintiffs were not taking care of Fakkirappa at his later days. It is the defendant who took care of his father and only after the death of Fakkirappa, the suit is filed creating a ground for challenging the gift.
10. Per contra, learned counsel for plaintiffs have contended that the suit schedule properties are the joint family properties. Sy.No.62/2 of Timmapur village belonging to the family of the plaintiffs and defendant, by selling the said property, item No.2 of the suit schedule property was acquired and item No.1 being the joint family property, plaintiffs and defendant are entitled to claim equal share. No reasons are assigned in the gift deed why Fakkirappa not allotted any property to his wife and daughters. The defendant by threatening Fakkirappa and with due coercion, got executed the gift deed.
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NC: 2024:KHC-D:10635-DB RFA No. 100138 of 2018 10(a) The plaintiffs came to know about the same and they immediately they questioned Fakkirappa and the defendant. It was promised to them that the gift deed will be cancelled and properties will be retained for the family. Fakkirappa was about to cancel the gift, but on 27.06.2015, the defendant committed his murder. Plaintiff No.1 was about to go to Police Station for filing complaint, but a panchayat was conducted, where the defendant agreed for cancellation of gift deed and allotment of shares to the plaintiffs equally. Because of this promise, murder case of Fakkirappa was closed as UDR. On closure of case as UDR, the defendant back tracked his promise and forced the plaintiffs to go before the Court. There was no reason for Fakkirappa to execute a gift deed in favour of defendant leaving his wife and daughters. Hence, the gift is a fraudulent one.
10(b) Cross-examination of the defendant demonstrates that the gift is attached with consideration. The defendant promised Fakkirappa that he will keep money in his name and in the name of 1st plaintiff in Fixed
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NC: 2024:KHC-D:10635-DB RFA No. 100138 of 2018 Deposit in bank and to pay money to his sisters. He did not deposit nor paid to the plaintiffs thereby gift is not acted upon and it is not a valid gift.
10(c) Trial Court has rightly accepted that the plaint schedule properties are joint family properties, Fakkirappa was aged, he was physically, mentally harassed and gift deed is concocted by the defendant and granted share to plaintiffs. It is further contended that during the pendency of the appeal, plaintiff No.1 has died and now plaintiff Nos.2 to 7 and defendant are the survivors of Fakkirappa. Hence, plaintiffs and defendant are equally entitled to 1/7th share each. Accordingly, sought for modification of the share allotted by the Trial Court.
11. We gave our anxious consideration to the arguments addressed by the learned counsel for the parties and perused the material on record.
12. The points that arise for our consideration are:
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NC: 2024:KHC-D:10635-DB RFA No. 100138 of 2018
(i) Whether the plaint schedule properties are joint family properties of plaintiffs and defendant?
(ii) Whether the alleged gift deed executed by Fakkirappa in favour of defendant is attached with consideration?
(iii) Whether the impugned judgment and decree passed by the Trial Court is erroneous and illegal?
13. Re: Point No.(i): The relationship between the plaintiffs and defendant is not in dispute. Suit schedule consists of 2 items. Item No.1 is RS No.125/2 measuring 6 acres 10 guntas which is gifted to Fakkirappa on 18.05.1967 by one Smt. Girewwa. Item No.2 is RS No.125/1 measuring 4 acres 21 guntas is purchased by Fakkirappa on 28.04.1980 from one Smt. Balavva Belli. Plaintiffs' claim that both the suit schedule properties are the ancestral joint family properties and defendant claims that they are the self acquired properties of Fakkirappa.
14. The parties have entered into witness box and the evidence on record point out that item No.1 of plaint
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NC: 2024:KHC-D:10635-DB RFA No. 100138 of 2018 schedule property is a gifted property by Smt. Girewwa in favour of Fakkirappa on 18.05.1967 and the same has been admitted by both the plaintiffs and defendant.
15. First plaintiff in the witness box asserts that though it was gifted in favour of her husband by Smt. Girewwa, it is the joint family property. When the gift was made in the year 1967, the plaintiff Nos.3 to 7 and the defendant were not at all born. The second defendant was a minor child. Under such circumstances, the gift in favour of Fakkirappa assumes the nature as self acquisition. Neither in the pleadings nor in the evidence, there is any averment or assertion that Fakkirappa left item No.1 of the plaint schedule to the common hotchpotch of the family treating it as a joint family property but at the same time, it is not in dispute that both the item Nos.1 and 2 are enjoyed by the family together and for the reason of some differences, his wife and daughters were residing separately and Fakkirappa and the defendant were residing together till his death.
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NC: 2024:KHC-D:10635-DB RFA No. 100138 of 2018 The Trial Court has recorded that item No.1 has been acquired by Fakkirappa since under the gift deed from Smt. Girewwa, it is his absolute property.
16. Learned counsel for plaintiffs brought to the notice of the Court the admission made by the defendant in the cross-examination that item No.1 was gifted to the family of Fakkirappa by Girewwa. If that is so, the plaintiff Nos.3 to 7 and defendant were not at all born at the time of gift. Then we cannot attach more weight to such admission of the defendant who was not born at the time of gift by Girewwa. Hence, the Trial Court has rightly observed that item No.1 of the plaint schedule is the absolute property of Fakkirappa.
17. Coming to the aspect of nature of property i.e., item No.2 of the plaint schedule, it is undisputed that Fakkirappa purchased this land by a registered sale deed dated 28.04.1980 for a consideration from one smt. Balavva Belli. The defendant claims that since Fakkirappa purchased this property out of the income derived from
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NC: 2024:KHC-D:10635-DB RFA No. 100138 of 2018 item No.1, it also becomes his self acquired property of his father. But the evidence brought on record clearly explains that Fakkirappa had purchased the land in Sy.No.62/2 from one Savantrewwa Junnur and Parvatewwa Junnur for a consideration of Rs.2,000/-. This piece of land was sold to one Hanamappa Soraganv on 28.04.1980 for a consideration of Rs.8,000/-. Interesting to note that the sale of RS No.62/2 and purchase of RS No.125/1 both are on 28.04.1980. So the proceeds to purchase item No.2 of the plaint schedule was derived by sale of RS No.62/2.
17(a) But at the same time, the defendant in the cross-examination categorically admitted that there was an ancestral land of 8 acres belonging to the family in RS No.42/2. This land was acquired by the Government and compensation was awarded to Fakkirappa. The defendant admits that out of the compensation so received on account of land acquisition, item No.2 i.e., RS No.125/1 measuring 4 acres 21 guntas was acquired by Fakkirappa. The admission of the defendant sufficiently explain that
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NC: 2024:KHC-D:10635-DB RFA No. 100138 of 2018 Fakkirappa in order to acquire RS No.125/1 i.e., item No.1 utilized compensation received from the Government and also sale of land in RS No.62/2. This clearly goes to demonstrate that the proceeds to acquire item No.2 of the plaint schedule also contributed by the ancestral property of the plaintiffs and defendant. So it is clear that item No.2 of the plaint schedule is acquired by Fakkirappa by contributing compensation of ancestral land acquired by the Government. Thereby it assumes the nature of joint family of the plaintiffs and defendant.
18. Now from the above discussion, it is very clear that item No.1 of plaint schedule is self acquired by Fakkirappa. Item No.2 is the joint family property of both the plaintiffs and defendant along with Fakkirappa. The defendant in witness box admitted that there was no partition of the suit schedule properties between Fakkirappa and his wife and children, no share was given to the plaintiff Nos.2 to 7 and till the death of Fakkirappa suit schedule properties are enjoyed by Fakkirappa. In
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NC: 2024:KHC-D:10635-DB RFA No. 100138 of 2018 the absence of evidence that the item No.1 was blended with item No.2 as joint family property, it is very difficult to accept the contention of the plaintiffs that item No.1 of the plaint schedule is also the joint family property. Hence, we are persuaded in recoding our finding that the item No.1 of the plaint schedule is the absolute property of Fakkirappa and item No.2 is the joint family property of plaintiffs and defendant along with Fakkirappa. Accordingly, the point No.1 is answered.
19. Re: Point No.(ii): The plaintiffs claim that fraud has been played by the defendant against Fakkirappa in obtaining the gift deed. It is also contended that the defendant forced Fakkirappa to execute the gift deed in his favour. The gift deed is tendered before the Court by the defendant and marked as per Ex.D-3.
20. We have carefully perused the evidence relied by both the plaintiffs and defendant. The evidence brought out that Fakkirappa was cordial with his son only. He was not cordial with his wife and daughters. The
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NC: 2024:KHC-D:10635-DB RFA No. 100138 of 2018 defendant offers explanation that his mother was not listening to the words of his father. For this reason, the mother was residing with the daughters and father was residing with the son. But at the same time, the defendant admits that Fakkirappa had affection towards his wife and daughters.
20(a) The defendant also explains the custom in their village that no share will be given to the female members of the family, they will be given only gold and share in the immovable property was given to the son/sons only. In this regard, the elders in the village have adviced Fakkirappa to give the entire land properties to the defendant, asked him to keep some money in his and wife's name and give gold to the daughters. This explains that involvement of the elders of the village in asking Fakkirappa to part with the landed properties in favour of the son by giving gold to the daughters keeping some money in his name. In this background, Ex.D-3 came into existence.
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NC: 2024:KHC-D:10635-DB RFA No. 100138 of 2018 20(b) It is the argument of the learned counsel for defendant that it is the plaintiffs, who urged forgery and they are required to plead and prove the alleged fraud committed by the defendant against Fakkirappa as required under Order 6 Rule 4 of CPC. In this regard, it is very relevant to refer the evidence of the defendant. During the course of cross-examination, the defendant admits that as per the advice by the village elders, Fakkirappa asked him to deposit Rs.2,00,000/- in his name, Rs.2,00,000/- in the name of first plaintiff and to pay 1 tola gold each to the plaintiff Nos.2 to 7. The defendant borrowed loan of Rs.4,00,000/-, 2 months prior to the execution of gift deed, gave Rs.2,00,000/- to the hands of his father. Since the mother did not accept, he returned the loan of Rs.2,00,000/-. But in the course of cross-examination of 1st plaintiff, no such suggestion was put.
20(c) The defendant also admits that before executing the gift deed, his father put the full responsibility of this sisters on his shoulders. His father
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NC: 2024:KHC-D:10635-DB RFA No. 100138 of 2018 though told him to give 1 tola gold, he has not paid it to his sisters as they did not come forward to collect the same. This aspect is also not forthcoming in the cross- examination of PW-1. In this regard, the defendant did not issue any notice asking his sisters to collect 1 tola gold nor approached them offering the gold. This admission clearly goes to show that before executing the gift deed, there were prior talks and several conditions were put. As the defendant admitted to abide by the said terms, Fakkirappa executed Ex.D-3 gift deed.
21. It is brought out in the evidence that at the time of execution of gift, Fakkirappa was aged, not able to walk, within 42 days of the execution of the gift deed, Fakkirappa died. According to defendant, he died by committing suicide. If really Fakkirappa was a happy married person with his wife, son and daughters, where was the occasion for him to commit suicide within 42 days of execution of the gift deed. The defendant admits that
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NC: 2024:KHC-D:10635-DB RFA No. 100138 of 2018 within 2 days, from the execution of the gift deed, he has applied for change of revenue khata.
21(a) That the death of Fakkirappa was reported to the police on the basis of the complaint of mother, the complaint came to be closed as UDR. Though the defendant claims that father committed suicide because of harassment by his grandchildren i.e., the children of his sisters and he was about to file the police complaint which was prevented by the village elders. This aspect is not corroborated by any person knowing these facts. Under these circumstances, gift is surrounded with circumstances which caste cloud against the defendant leading to a complaint filed by the mother. Under such circumstances, what weight can be attached to such a gift has to be considered now.
22. The Trial Court has referred Section 122 of the Transfer of Property Act, 1882 (for short, 'T.P. Act') regarding gift of movable or immovable property made voluntarily and without consideration, by a donor in
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NC: 2024:KHC-D:10635-DB RFA No. 100138 of 2018 favour of donee. The Trial Court has noted down the following essential requisites for a valid deed, which are extracted as below:
i) There must be a transfer of ownership of a property.
ii) The property should be of existing property.
iii) The transfer should be voluntary.
iv) It shall be without consideration.
v) It can be of movable of immovable property.
vi) The transfer should be accepted by the Donee from the Donor.
vii) The acceptance of the transfer must be during the life-
time of the donor and he must be still capable of giving. In the event of the donor dying before acceptance, the gift is void.
23. The Trial Court also referred to Section 123 of T.P. Act with reference to the attestation of gift deed by alteast 2 witnesses. Since the execution of gift by Fakkirappa in favour of the defendant is not valid and allegation that the said gift is under fraud, there is no effect of Section 123 of T.P. Act.
24. We have carefully perused the statement of defendant during the cross examination. When the gift
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NC: 2024:KHC-D:10635-DB RFA No. 100138 of 2018 deed was executed, Fakkirappa was aged, he was under
his control, wife was not residing with Fakkirappa as the plaintiffs were residing separately elsewhere. It is also admitted by the defendant that the transfer of immovable properties in favour of the defendant was decided by the elders as there is no custom in the village to give share to female members in the family. They were only given with gold as a token of affection. In the present case, the defendant admitted that the demand of the father that gift will be made only if a sum of Rs.2,00,000/- is deposited in his and his wife-first plaintiff's name and 1 tola gold is to be given each of the sisters. No evidence is placed by the defendant to show that he has deposited any amount in the name of his parents and gave gold to the sisters. From these statements, it is very clear that gift having a condition of payment of consideration. In view of the same, as referred in Section 122 of T.P. Act, the essential requisite to complete the gift shall be without consideration. But here in this case, the gift in
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NC: 2024:KHC-D:10635-DB RFA No. 100138 of 2018 favour of the defendant in Ex.D-3 is supported with consideration.
25. It has been argued by the learned counsel for defendant that on plain reading of the recitals of Ex.D-3 there is no recital as to the payment of any consideration for the gift. Under such circumstances, the oral evidence will not exclude the recitals in Ex.D3. In this regard, Section 91 of the Evidence Act is relevant to note that when the terms of contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself.
25(a) It is relevant to refer exception to Section 92 of the Evidence Act where the oral evidence is admissible to prove that the document is a sham transaction. Exception to this rule, oral evidence is admissible to explain that document is a sham. Here in this case, it is
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NC: 2024:KHC-D:10635-DB RFA No. 100138 of 2018 the specific case of the plaintiffs that fraud is played and Ex.D-3 is a sham document. In such circumstances, in view of exception to Section 92 of the Evidence Act, the oral evidence of the defendant that the gift deed attached with consideration is admissible. On a plain reading of Ex.D-3, we can note that there is no recital as to why the other family members were kept out of gift.
26. The evidence speaks that at relevant point of time, there was disharmony in the family, the wife and daughters were residing separately. Fakkirappa was under
the control of defendant. The evidence also suggests that for execution of gift deed, the defendant has actively participated, above all within 2 days of execution of gift deed, the defendant tries to get change of khata and within 42 days of the execution of gift deed, father dies. Attributing allegations against the defendant that he was the cause for the death of his father. The defendant admits that father committed suicide wherein plaintiff No.1 attributed that death was caused by the defendant.
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NC: 2024:KHC-D:10635-DB RFA No. 100138 of 2018 In support of this, it is admitted that postmortem was conducted on the dead body of Fakkirappa and the police have registered the UDR case on the complaint of the mother. The evidence also suggests involvement of elders of village, made an allegation that the case was converted into UDR. Under such circumstances, the totality of the evidence and the document at Ex.D-3 clearly indicates that gift is not executed by Fakkirappa with free will on his own volition, gift is attached with consideration and this consideration has not been paid by the defendant. Hence, the gift deed is not executed in letter and spirit of Fakkirappa in disposing of the plaint schedule properties in favour of son excluding his wife and daughters. The evidence on record suffice to hold that the gift is not a valid gift.
27. Item No.2 is the property acquired by Fakkirappa out of income derived from the ancestral property. Fakkirappa cannot gift entire properties even if the gift is accepted, it can only bind the undivided share
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NC: 2024:KHC-D:10635-DB RFA No. 100138 of 2018 of Fakkirappa. Since the plaintiffs have proved that gift is not a valid gift, irrespective of plaint schedule item Nos.1 and 2 ancestral and self acquired properties of Fakkirappa, both plaintiffs and defendant are entitled for equal share. In the result we answer point No.(ii) accordingly.
28. Re: Point No.(iii): We have carefully perused the impugned judgment. The Trial Court after examining the evidence, documents held that the properties were the ancestral properties and provisions of Hindu Succession Act have been applied and directed for partition of the properties. The Trial Court also held that item No.1 is self acquired property, item No.2 is ancestral property. As we discussed above, the finding recorded by the Trial Court is proper and based on the facts pleaded and evidence placed before it. We noticed that the Trial Court has applied notional partition in respect of item No.2 being the joint family property, allotted equal share
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NC: 2024:KHC-D:10635-DB RFA No. 100138 of 2018 to the plaintiffs and defendant in respect of item No.1 as self acquired property of Fakkirappa.
29. There is changed circumstance due to efflux of time in this appeal. Plaintiff No.1 during the pendency of the appeal reported to be dead and there remain the plaintiffs No.2 to 7 and defendant. Their father died in the year 2015. In Vineeta Sharma and Rakesh Sharma and others1, the Hon'ble Apex Court held that female members become the members of the joint family at par with the male members by virtue of amendment of Section 6 of Hindu Succession Act. Therefore, irrespective of the plaint schedule properties, self acquired or joint family properties, plaintiffs No.2 to 7 and defendant are equally entitled to share in both plaint schedule properties. Share can be modified by the Trial Court at the time of division of the properties in the Final Decree Proceedings.
1 (2020) 9 SCC 1
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NC: 2024:KHC-D:10635-DB RFA No. 100138 of 2018
30. In view of above discussions and re- appreciation of case pleaded by both plaintiffs and defendant, we are of the considered opinion that gift deed is invalid, plaintiffs and defendant are entitled to share the suit 'B' schedule property equally. We do not find any illegality or error committed by the Trial Court in appreciating the evidence. Accordingly, we answer point No.(iii). Therefore, the appeal is devoid of merits. In the result, the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE NAA List No.: 1 Sl No.: 1